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Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061 and 4062, Labor Code.
s 14. Doctors of Chiropractic: Certification in Workers' Compensation Evaluation.
(a) All doctors of chiropractic, in lieu of board certification, shall be certified in workers' compensation evaluation by either a California professional chiropractic association, or an accredited California college recognized by the Council. The certification program shall include instruction in disability evaluation report writing that meets the standards set forth in Section 11.5.
(b) California professional chiropractic associations or accredited California colleges applying to be recognized by the Council for the purpose of providing these required courses to chiropractors in California workers' compensation evaluation, shall meet the following criteria:
(1) The provider's courses shall be administered and taught by a California professional chiropractic association or a California chiropractic college accredited by the Council on Chiropractic Education. Instructors shall be licensed or certified in their profession or if a member of a non-regulated profession have at least two years experience in their area of instruction regarding workers' compensation issues.
(2) The provider's method of instruction and testing shall include all of the following:
(A) lecture, didactic sessions and group discussion including an initial 8 hours of overview of the workers' compensation system and 36 additional hours in medical-legal issues for total minimum class time of 44 hours. Up to 4 hours of the instruction covering the regulations affecting QMEs and/or writing ratable reports may be satisfied by distance learning. The initial 8 hours of overview are transferable to any other approved program provider for credit;
(B) passing a written test at the completion of the program to determine proficiency and application of course material;
(C) writing a narrative conclusion to medical-legal issues in response to facts presented or a narrative report, in appropriate format, which would meet the standards of a ratable report;
(3) The initial 8 hours of the course material shall cover the following information:
(A) overview of California Labor Code, DWC (Division of Workers' Compensation of the California Department of Industrial Relations) and Council regulations governing medical-legal reports and evaluations;
(B) obligations of the treating and evaluating physicians;
(C) review of appropriate workers' compensation terminology;
(4) The remaining 36 hours shall include but not be limited to the following:
(A) history and examination procedure requirements, including all relevant IMC guidelines;
(B) work capacity guidelines and disability ratings;
(C) apportionment;
(D) vocational rehabilitation;
(E) continued or future medical care.
(5) The provider's course material and tests shall be submitted to the Council for annual review and the Council shall monitor a provider's course as necessary to determine if the provider meets the criteria for recognition.
(6) The provider's course advertising shall clearly state whether or not the course is recognized to satisfy the requirement for chiropractic California workers' compensation evaluation by the Council.
(c) Course Material shall also cover at a minimum, the material within the text of the "Physicians Guide to Medical Practice in the California Workers' Compensation system (Current Edition)." Note : The "Physicians Guide" does not appear as a part of this regulation. Copies are available through the Executive Medical Director of the Industrial Medical Council; P. O. Box 8888, San Francisco, CA 94128-8888.
Note: Authority cited: Sections 139, 139.2 and 139.3, Labor Code. Reference: Sections 139.2, 4060, 4061 and 4062, Labor Code.
s 15. Appointment of Retired or Teaching Physicians.
In order to be considered for appointment as a QME pursuant to Labor Code Section 139.2(c), a physician shall submit written documentation to the Council that he or she meets either (a), (b) or (c) of this section. A physician applying for appointment pursuant to this section shall also pass the QME competency examination.
The physician shall:
(a) Be a current salaried faculty member at an accredited university or college, have a current license to practice as a physician and have been engaged in teaching, lecturing, published writing or medical research at that university or college in the area of his or her specialty for not less than one-third of his or her professional time. The physician's practice in the three consecutive years immediately preceding the time of application shall not have been devoted solely to the forensic evaluation of disability.
(b) Be retired from full-time practice, retaining a current license to practice as a physician with his or her licensing board; and
(1) Has a minimum of 25 years' experience in his or her practice as a physician; and
(2) Has had a minimum of 10 years' experience in workers' compensation medical issues; and
(3) Is currently practicing fewer than 10 hours per week on direct medical treatment as a physician, and;
(4) Whose practice in the three consecutive years immediately preceding the time of application was not devoted solely to the forensic evaluation of disability.
(c) Be retired from active practice due to a documented medical or physical disability as defined pursuant to Gov't Code s 12926 and currently practicing in his or her specialty fewer than 10 hours per week. The physician shall have 10 years experience in workers' compensation medical issues as a physician. The physician's practice in the three consecutive years immediately preceding the time of application shall not have been devoted solely to the forensic evaluation of disability.
(d) A physician appointed under Section 11 or this section shall, notify the Council of changes in his or her status and shall complete the requirements for continuing education pursuant to section 55 prior to reappointment.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061 and 4062, Labor Code.
s 16. Determination of Fees for QME Eligibility.
(a) For purposes of establishing the annual fee for any qualified medical evaluator pursuant to Article 2, physicians (as defined under Section 3209.3 of the Labor Code) shall be classified into one of three categories:
(1) QMEs who meet all applicable requirements under Article 2 and 5 and who have conducted 0-10 comprehensive medical-legal evaluations in the twelve months prior to the assessment of the fee. Comprehensive medical-legal evaluations are evaluations as defined under Section (1)(d) of this Chapter performed by a physician.
(2) QMEs who meet all applicable requirements under Article 2 and 5 and who have conducted 11-24 comprehensive medical-legal evaluations in the twelve months prior to assessment of the fee. Comprehensive medical-legal evaluations are evaluations as defined under Section (1)(d) of this Chapter performed by a physician.
(3) QMEs who meet all applicable requirements under Article 2 and 5 and who have conducted 25 or more comprehensive medical-legal evaluations in the twelve months prior to assessment of the fee. Comprehensive medical-legal evaluations are evaluations as defined under Section (1)(d) of this Chapter performed by a physician.
(b) The evaluations shall be conducted in compliance with all applicable statutes and regulations.
(c) Verification of the number of examinations shall be made by the Council using The Findings Summary Form in Section 36.1. Misrepresentation of the number of evaluations performed for purposes of establishing a physician's QME fee shall constitute grounds for disciplinary proceedings under Section 60 of this chapter.
Note: Authority cited: Section 139.2, Labor Code. Reference: Sections 139, 139.1 and 139.2, Labor Code.
s 17. Fee Schedule for QME.
(a) All physicians seeking QME status shall be required to pay to the Industrial Medicine Fund within the Industrial Medical Council, the following fee:
(1) QMEs performing 0-10 comprehensive medical-legal evaluations, $110 during each of the years or any part of a year the physician retains his or her eligibility on the approved QME list.
(2) QMEs performing 11-24 comprehensive medical-legal evaluations, $125 during each of the years or part of a year the physician retains his or her eligibility on the approved QME list.
(3) QMEs performing 25 or more comprehensive medical-legal evaluations, $250 during each of the years or any part of a year the physician retains his or her eligibility on the approved QME list.
(b) Individual QMEs who perform comprehensive medical-legal evaluations at more than one medical office location within the state which is identified by a street address and any other more specific designation such as a suite or room number and which contains the usual and customary equipment for the evaluations and treatment appropriate to the medical specialty or practice shall be required to pay an additional $100 annually per additional office location. This requirement applies to all QMEs regardless of whether the QME is a sole practitioner, or corporation, or partnership pursuant to Corporations Code Chapter 1 (sections 15001-15045) Chapter 2 (sections 15501-15533) and/or Chapter 3 (sections 15611-15723).
(c) The IMC may waive or return the statutory fee in the amount of $110 for the completion of a survey of QMEs to validate the QME competency examination. The term "completion of the survey" means the return of the survey to the testing agency designated by the IMC on or before the date for the return of the survey.
Note: Authority cited: Section 139.2, Labor Code. Reference: Sections 139, 139.1 and 139.2, Labor Code.
s 18. QME Fee Due Dates.
(a) All physicians, regardless of the number of comprehensive medical-legal evaluations performed under Section 17 shall pay the required QME fees at yearly intervals within 30 days of receipt of notice from the Council that the QME fee for the next 12 months is due and payable. No physician who has passed the competency examination shall be placed on the active QME roster until the appropriate fee under section 15 has been paid.
(b) Any QME who fails to pay the required statutory fee within 30 days of receipt of a final notice that the fee is due shall be notified that he or she shall be terminated from the official QME roster of physicians within 30 days and shall not perform any panel QME or represented QME comprehensive medical-legal evaluation until the fee is paid. If the fee is not paid within two years from the due date in the QMEs final notice from the Council that the fee is due, then the physician shall resubmit a new application pursuant to Sections 10 and 11, pass the QME competency examination and pay the appropriate fee prior to regaining QME eligibility.
Note: Authority cited: Section 139.2, Labor Code. Reference: Sections 139 and 139.2, Labor Code.
s 19. Certificate of QME Status.
(a) Upon receipt of the QME fees and review by the council to ensure current compliance with section 139.2 of Labor Code and any other applicable regulations promulgated by the council concerning QME eligibility, the council shall within 45 days send to the physician a certificate of approved status as Qualified Medical Evaluator. The certificate of QME status shall be displayed in a conspicuous manner at the QME's office location at all times during the period the QME is approved by the council to conduct evaluations under council appointment.
(b) It shall be unlawful for any physician who has been terminated or suspended from the QME list or who has failed to pay the required QME fee pursuant to sections 17 and 18 to display a certificate of approved status as a Qualified Medical Evaluator.
Note: Authority cited: Section 139.2, Labor Code. Reference: Sections 139 and 139.2, Labor Code.
s 20. Time Periods.
(a) Within 45 days of receipt of an application for QME status, the Council shall either inform the applicant, in writing, that the application is complete and accepted for filing, or that the application is deficient and what specific information is required.
(b) Within 45 days of receipt of a completed application, the Council shall inform the applicant, in writing, of its decision to allow or not to allow the applicant to proceed to take the required QME competency examination as per Section 11(c) of these regulations.
(c) Within 45 days of receipt of a completed application, the Council must inform the applicant, in writing, of its decision to grant or deny the application.
(d) Based upon the two years immediately preceding October 1, 1993, the Council's minimum time for processing an application for QME status is 14 days. The median time is 60 days. The maximum time is 2 years.
Note: Authority cited: Sections 139 and 139.2, Labor Code; and Section 15376, Government Code. Reference: Sections 4060, 4061 and 4062, Labor Code; and Section 15376, Government Code.
s 30. QME Panel Requests.
(a) Requests for a QME panel made by an unrepresented employee pursuant to Labor Code Sections 4061 and 4062 shall be submitted on the form in Section 106.
(b) In the event a request form is incomplete, or improperly completed so that a QME panel selection cannot properly be made, the request form shall be returned to the employee with an explanation why the selection could not be made.
(c) The Request for Qualified Medical Evaluator Form along with the instruction form in Section 105 entitled "How to Request a Qualified Medical Evaluator" shall be provided by the claims administrator (or, if there is no claims administrator, the employer) to the unrepresented employee by personal delivery to the employee or by first class or certified mailing.
(d)(1) For admitted injuries between January 1, 1991 and December 31, 1993, a panel request form and notice in a form prescribed by the Administrative Director pursuant to Article 8 of Chapter 4.5 of this Title shall be provided to an unrepresented employee where the employee, the claims administrator or, if none, the employer alleges a medical conclusion that the employee is no longer entitled to temporary disability indemnity and permanent disability cannot be determined or is or is not payable. The QME shall address all medical issues raised by the parties, including but not limited to the employee's permanent and stationary status, the extent and scope of medical treatment, the employee's status as a Qualified Injured Worker or the existence of new and further disability in order to produce a complete comprehensive medical-legal evaluation.
(2) For admitted injuries occurring on or after January 1, 1994 a panel request form and the Administrative Director's notice pursuant to Article 8 of Chapter 4.5 of this Title shall be provided to an unrepresented employee where a party disputes a medical conclusion by the primary treating physician. If the issues are other than the level of permanent impairment and limitations or the need for medical care, the objecting party shall, absent good cause as determined by the Appeals Board, notify the other party of the nature of the objection within 30 days of receipt of the report from the primary treating physician. The objecting party shall submit a written copy of the objection to the QME along with any medical records submitted pursuant to the requirements of Section 35. After the QME evaluation is complete, either the employee or the employer may object to any new or unresolved issue. The parties shall utilize the same QME to the extent possible. Where the issue is outside the QME's scope of practice pursuant to the QMEs licensing authority, the parties may select another QME pursuant to subdivision (a) of Section 4064 of the Labor Code.
(e) If the request form is submitted by an unrepresented employee who no longer resides within the state of California, the geographic area of the QME panel selection within the state shall be determined by agreement between the claims administrator or, if none, the employer, and the employee. If no agreement can be reached, the geographic area of the QME panel selection shall be determined by the employee's former residence within the state.
Note: Authority cited: Sections 139, 139.2, 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 30.1. The Request for Qualified Medical Evaluator Form.
Note: Authority cited: Sections 133, 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061 and 4062, Labor Code.
s 30.2. The Request for Qualified Medical Evaluator Instruction Form:
Note: Authority cited: Sections 4061 and 4062, Labor Code. Reference: Sections 4061 and 4062, Labor Code.
s 30.5. Specialist Designation.
The Medical Director shall utilize in the selection process the specialist(s) indicated on the Request for Qualified Medical Evaluator Form 105.
Note: Authority cited: Sections 139, 139.2, 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 31. QME Panel Selection.
(a) The panels shall be selected randomly from the appropriate specialty requested by the employee, with consideration given to the proximity of the QME's medical office to the employee's residence.
(b) The unrepresented employee shall make an appointment request with a QME listed on the panel and may consult with his or her primary treating physician as to an appropriate QME specialist. Neither the claims representative nor a representative of the employer nor a QME may discuss or make the selection of a panel QME for an unrepresented worker at any time.
(c) The Medical Director shall exclude from the panel selection process any QME who has informed the Medical Director that he or she is unavailable pursuant to Section 33.
(d) Any physician who has served as a primary treating physician or secondary physician and who has provided treatment in accordance with Section 9785.5 of this Title for this injury for an unrepresented employee shall not perform a QME evaluation on that employee. If that QME appears on a panel, he or she shall disqualify him or herself, and the employee may request a replacement QME pursuant to Section 31.5.
Note: Authority cited: Sections 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 31.1. The Qualified Medical Evaluator Panel Selection Form.
Note: Authority cited: Sections 139.2, 4061 and 4062, Labor Code. Reference: Section 139.2, Labor Code.
s 31.2. The Qualified Medical Evaluator Panel Selection Instruction Form.
Note: Authority cited: Sections 133, 139, 139.2, 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061, 4061.5 and 4062, Labor Code.
s 31.5. QME Replacement Requests.
(a) A replacement QME to a panel shall be provided to an unrepresented worker upon the employee's request if any of the following occurs:
(1) A QME on the panel issued does not practice in the specialty requested by the employee.
(2) A QME on the panel issued cannot schedule an examination for the employee within 60 days of the employee's request.
(3) The employee has changed his or her residence address since the QME panel was issued.
(4) A physician on the QME panel is a member of the same group practice as defined by Labor Code section 139.3 as another QME on the panel.
(5) The QME is unavailable pursuant to section 33.
(b) Any party may request a replacement QME if any of the following occurs:
(1) The employee's primary treating physician in accordance with Section 9785 of this Title is on the panel.
(2) The claims administrator or, if none, the employer and the unrepresented employee agree that a new panel may be issued in the geographic area of the employee's work place.
(3) The Medical Director, upon written request, finds good cause that a replacement QME is appropriate for reasons related to the medical nature of the injury. For purposes of this subsection, "good cause" is defined as a documented medical or psychological impairment.
(4) The Medical Director, upon written request, determines after a review of all appropriate records that the specialty chosen by the injured worker is medically or otherwise inappropriate for the injury to be evaluated.
(5) Any violation of Section 34.
(c) The Medical Director shall select replacement QME(s) at random.
Note: Authority cited: Sections 139, 139.2, 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 32. Consultations.
(a) For injuries occurring between January 1, 1991 and December 31, 1993, a party may request the Medical Director to direct the QME to consult with a physician in an appropriate specialty to address issues outside the QME's specialty if the party believes such a consultation is necessary to provide a complete and accurate examination pursuant to section 4061 of the Labor Code. The party requesting the consultation shall specify in writing the reasons for the consultation. Valid reasons for providing the QME consultation shall include, but not be limited to, the expertise of the QME, the accuracy of the QME comprehensive medical-legal evaluation in question and the complexity of the medical issue involved.
(b) The Medical Director shall appoint a separate list of physicians for requests pursuant to subsection (a), and shall, in his or her discretion, grant or deny the request within 30 days.
(c) For injuries occurring on or after January 1, 1994 a QME may obtain a consultation from any physician who has treated the unrepresented employee for the injury listed on the panel request form or by any physician as reasonable and necessary pursuant to Labor Code section 4064 or upon agreement by a party to pay the cost.
(d) In any case where an acupuncturist has been selected by the injured worker from a three-member panel and an issue of disability is in dispute, the acupuncturist shall request a consult from a QME defined under s 1(n) to evaluate the disability issue(s). The acupuncturist shall evaluate all other issues as required for a complete evaluation.
Note: Authority cited: Sections 139.2, 4061, 4062 and 4064, Labor Code. Reference: Sections 4061 and 4062, Labor Code.
s 32.5. Rebuttal QME Examinations.
(a) For injuries occurring between January 1, 1991 and December 31, 1993, an unrepresented employee shall have the right to a QME panel for one comprehensive medical-legal evaluation to rebut the findings of a panel QME, provided however, that the rebuttal evaluation is reasonable and necessary to resolve a disputed medical fact as defined in section 9793(e) of this Title. The employee shall notify in writing the claims administrator, or if none, the employer, the justification for the rebuttal evaluation. A copy of this notice shall be submitted to the Medical Director with this request. Reasonable and necessary justification shall include but not be limited to a discrepancy between the treating physician's conclusions and the QME's conclusions as to the level of permanent impairment, the need for medical treatment or the employee's status as a Qualified Injured Worker.
(b) For injuries occurring on or after January 1, 1994, and upon request by the Appeals Board, the Medical Director shall assign a QME to address disputed issues provided, however, that the claims administrator or if none, the employer, agrees to pay for the cost of this rebuttal examination.
Note: Authority cited: Sections 139.2, 4061, 4062 and 4064, Labor Code. Reference: Sections 4061 and 4062, Labor Code.
s 32.7. Rebuttal QME Examinations.
Note: Authority cited: Sections 139.2, 4061 and 4062, Labor Code. Reference: Sections 4061 and 4064, Labor Code.
s 33. Unavailability of QME.
(a) A QME who will be unavailable to accept appointments to a QME panel for a period of 14 days or more for any reason, including a change of address, absent good cause including but not limited to medical or family emergency, shall notify the Medical Director by submitting the form in Section 109. The form shall be filed with the Medical Director 30 days prior to the period of unavailability. The Medical Director may, in his or her discretion, grant a notice of unavailability within the 30 day period in cases of injury or illness to the QME or his or her immediate family.
(b) It shall not be an acceptable reason for unavailability that a QME does not intend to perform comprehensive medical-legal evaluations for unrepresented workers. A QME who has filed notification for unavailability for more than 90 days during the QME fee period without good cause may be denied reappointment subject to Section 52. Good cause includes, but is not limited to sabbaticals or death of immediate family member.
(c) If an unrepresented employee is unable to obtain an appointment for an evaluation with a selected QME within 60 days after an appointment request, the employee may report the unavailability of the QME to the Medical Director. The Medical Director shall provide a replacement QME at random to be added to the employee's panel in accordance with Section 31(d). The employee may choose to waive his or her right to replacement QME and accept a later appointment with the originally selected QME or select one of the two remaining QME's on the panel.
(d) If a QME fails to notify the Medical Director, by submitting the form in Section 109, of his or her unavailability at a medical office due to a change in address for that office within 30 days of the change, the Medical Director may designate the QME to be unavailable at that location for 30 days from the date the Medical Director learns of the change in address. At that time, a certified letter will be sent to the QME by the IMC regarding his/her unavailability. If the IMC does not receive a response within 30 days of the date of certification of the letter, then the QME will be made inactive at that location.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 33.1. The Notice of QME Unavailability Form.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 34. Appointment Notification.
(a) When an unrepresented employee makes an appointment with a QME, the QME shall complete an appointment notification form by submitting the form in Section 110. This completed form shall be postmarked or sent by facsimile to the employee and the claims administrator or, if none, the employer within 5 working days of the date the appointment was made. Failure to comply with this requirement shall constitute grounds for denial of reappointment under Section 51.
(b) The QME shall schedule an appointment for a comprehensive medical-legal examination which shall be conducted only at the medical office listed on the panel selection form.
(c) The QME shall include within the notification whether a Certified Interpreter, as defined by Labor Code Section 5811 and subject to the provisions of section 9795.3 of this Title, is required and specify the language. The interpreter shall be arranged by the party who is to pay the cost as provided for in Section 5811 of the Labor Code.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 4061 and 4062, Labor Code.
s 34.1. The Appointment Notification Form:
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 35. Exchange of Information.
(a) Where an employee is unrepresented, the claims administrator or, if none, the employer shall, and the employee may, provide to the QME:
(1) All records prepared or maintained by the employee's treating physician or physicians;
(2) Other medical records in their possession, including any previous treatment records, and/or non-medical records or information which are relevant to the evaluation of the employee's injury;
(3) A letter outlining the issues which the QME is requested to address in the evaluation, which shall be served on the opposing party no less than 20 days in advance of the evaluation;
(b) In no fewer than 20 days before the information is to be provided to the QME, the party providing such information shall serve on the opposing party the following:
(1) A copy of all medical records and medical reports to be sent.
(2) A copy of all non-medical documents or other non-medical information, including films or videotapes, to be sent. The claims administrator or employer shall include a cover letter or other document when providing such information to the employee which shall clearly and conspicuously include the following language: "Please look carefully at the enclosed information. It may be used by the doctor who is evaluating your medical condition as it relates to your workers' compensation claim. If you do not want the doctor to see this information, you must let me know within 10 days."
(3) Copies of all records being sent to the QME shall be sent to all parties except as otherwise provided in section (c). Failure to do so shall constitute ex parte communication by the party transmitting the information under section (f).
(c) In the event that the unrepresented employee schedules an appointment within 20 days of receipt of the panel, the employer or if none, the claims administrator shall not be required to comply with the 20 day time frame for sending medical information in subsection (b)(1) provided, however, that the unrepresented employee is served all non-medical information in subsection (b)(2) 20 days prior to the information being served on the QME so the employee has an opportunity to object to any non-medical information.
(d) In the event that a party fails to provide to the QME any relevant medical record which the QME deems necessary to perform a comprehensive medical-legal evaluation, the QME may contact the treating physicians or other health care provider, to obtain such record(s). If the party fails to provide relevant medical records under section (a) within 10 days after the date of the evaluation, and the QME is unable to obtain the records, the QME shall complete and serve the report to comply with the statutory time frames under Section 38. The QME shall note in the report that the records were not received within the required time period. Upon request by the party, or the Appeals Board, the QME shall complete a supplemental evaluation when the relevant medical records are received. For a supplemental report the QME need not conduct an additional physical examination of the employee if the QME believes a review of the additional records is sufficient.
(e) The QME and the employee's treating physician(s) may consult as necessary to produce a complete and accurate report. The QME shall note within the report new or additional information received from the treating physician.
(f) If an employer or claims administrator communicates with a QME in violation of Labor Code section 4062.2, the Medical Director shall provide the unrepresented employee with a new panel in which to select a new QME or the employee may elect to proceed with the original QME. If an employee communicates with a QME either before or after the evaluation, in violation of Labor Code section 4062.2, the claims administrator or employer may request the Medical Director to issue a new panel to the unrepresented employee. The Appeals Board shall retain jurisdiction to determine whether ex parte contact has occurred in all cases.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.2, Labor Code.
s 35.5. Compliance by QMEs with IMC Guidelines.
Any evaluation pursuant to Labor Code 4060, 4061 and 4062 shall be performed in compliance with all appropriate evaluation procedures pursuant to Article 4 of this Chapter.
s 36. Summary Form for Comprehensive Medical-Legal Evaluation Performed Pursuant to Labor Code Section 4061 by QMEs or AMEs; Service of Form and Evaluation.
(a) Upon completion of either a comprehensive medical-legal evaluation or follow-up medical legal evaluation as defined under Section 9793(f) of this Title, of an unrepresented employee, the evaluator shall complete the QME/AME Findings Summary Form in Section 111. The Form shall not be required for a supplemental medical legal evaluation under 9793(k) of this Title. The evaluator shall serve the comprehensive medical-legal evaluation, the summary form, and DEU forms 100 and 101 on the employee, and the claims administrator, or if none, the employer, as well as the appropriate local DEU office within the time frames specified in Section 38.
(b) If an evaluation is completed under subsection (a) for an unrepresented employee, in which the QME determines that the employees condition has not become permanent and stationary as of the date of the evaluation, the parties shall request any further evaluation from the same QME if the QME is currently an active QME and available at the time of the request for the additional evaluation. If the QME is unavailable, a new panel may be issued to resolve any disputed issue(s). If the evaluator is no longer a QME, he/she may issue a supplemental report as long as a face-to-face evaluation (as defined in section 49(b) of these regulations) with the injured worker is not required. In no event shall a physician who is not a QME or no longer a QME perform a follow up evaluation on an injured worker.
Note: Authority cited: Section 139, Labor Code. Reference: Sections 4060, 4061 and 4062, Labor Code; and 8 CCR 10161.
s 36.1. The Qualified or Agreed Medical Evaluator's Findings Summary Form.
Note: Authority cited: Sections 139, 139.2, 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061 and 4062, Labor Code.
s 37. Treating Physician's Determination of Medical Issues Form.
Pursuant to Labor Code Sections 4061.5 and 139(e)(9), this form may be used by the treating physician primarily responsible for managing the care of the injured worker, or the physician designated by that physician, when rendering opinions on all medical issues necessary to determine eligibility for compensation. The Treating Physician's Determination of Medical Issues Form (Treating Physician's Form) is as follows:
Note: Sections 139, 4061 and 4061.5, Labor Code. Reference: Sections 139(e)(9), 4061 and 4061.5, Labor Code.
s 38. Medical Evaluation Time Frames; Extensions for QMEs and AMEs.
(a) For a late report, regardless of the date of injury, if any of the following occur, the unrepresented injured worker shall be entitled to a new three-member QME panel:
(1) the QME fails to request an extension
(2) the timeframe extension is denied
(3) the QME does not issue the report by the approved extension date.
The injured worker shall have 15 days from the date of notice by the Medical Director to complete, sign and return IMC Forms 113, 115, 116 as applicable. If the employee requests a new panel, the claims administrator or, if none, the employer shall have no liability for the late report. If the employee is represented by an attorney and the extension is denied to an AME, either party may withdraw from the AME and no party shall be liable for payment to the AME.
(b) For injuries between January 1, 1991 and December 31, 1993, the time frame for comprehensive medical-legal evaluations to be prepared and submitted shall not exceed 45 days after the QME or AME has seen the employee or otherwise commenced the comprehensive medical-legal evaluation procedure. Extension of the 45-day limit shall be approved when the evaluator has good cause or has not received test results or consulting physicians' evaluations necessary to address all disputed medical issues in time to meet the initial 45-day deadline. If the evaluation is not completed on the scheduled date through no fault of the QME, the QME may request an extension not to exceed an additional 45 days from the Medical Director. The evaluator shall notify the employee and the claims administrator or, if none, the employer not later than 5 days before the initial 45-day period expires that an extension is warranted. A copy of the notice shall be sent to the Medical Director. The notice shall be on the form in Section 112. If the extension of time requires additional days greater than 90 days from the date of the evaluation for the submission of the report, approval or denial shall be granted within 10 days by the Medical Director.
(c) For injuries on or after January 1, 1994, the time frame for comprehensive medical-legal evaluations to be prepared and submitted shall not exceed 30 days after the QME or AME has seen the employee or otherwise commenced the comprehensive medical-legal evaluation procedure. Extension of the 30-day limit shall be approved when the evaluator has good cause or not received test results or consulting physicians' evaluations necessary to address all disputed medical issues in time to meet the initial 30-day deadline. If the evaluation is not completed on the scheduled date through no fault of the QME, the QME may request an extension not to exceed an additional 30 days from the Medical Director. The evaluator shall notify the employee and the claims administrator, or if none, the employer not later than 5 days before the initial 30-day period expires that an extension is warranted. A copy of the notice shall be sent to the Medical Director. The notice shall be on the form in Section 112. If the extension of time requires additional days greater than 60 days from the date of the evaluation for the submission of the report, approval or denial shall be granted within 10 days by the Medical Director.
(d) Extensions for good cause shall not exceed an additional 15 days from the date the report is to be served. Good cause means:
(1) medical emergencies of the evaluator or the evaluator's family;
(2) death in the evaluator's family;
(3) natural disasters or other community catastrophies that interrupt the operation of the evaluator's office operations;
(e) Extensions shall not be granted because relevant medical information/records (including Disability Evaluation Form 101 8 CCR s10161(b)) have not been received. The evaluator shall complete the report based on the information available and state that the opinions and/or conclusions may or may not change after review of the relevant medical information/records.
(f) The time frame for supplemental reports in unrepresented cases shall be no more than 60 days from the date of a written or electronically transmitted request to the physician by a party. The request for a supplemental report shall be accompanied by any new medical records unavailable to the QME at the time of the original QME evaluation in compliance with section 10160(f) of this Title. An extension of the 60 days may be agreed to by the parties.
(g) Evaluators giving notice of time extensions will be monitored and advised by the Medical Director when such notices appear unreasonable or excessive. Failure to comply with this section may constitute grounds for denial of the QME's request for reappointment pursuant to Section 51.
Note: Authority cited: Sections 139.2, 4061 and 4062, Labor Code. Reference: Sections 139.2, 4061, 4062 and 4067.5, Labor Code.
s 38.1. The QME and AME Time Frame Extension Request Form:
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062 and 4062.5, Labor Code.
s 38.2. "The Time Extension Approval" Form:
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062 and 4062.5, Labor Code.
s 38.3. The "Denial of Time Extension" Form.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062 and 4062.5, Labor Code.
s 38.4. The "Notice of Late QME Report" Form:
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062 and 4062.5, Labor Code.
s 39. Records, Destruction of.
The Medical Director may destroy any forms included in these regulations five years after the date of receipt, provided that the completed "Application for Appointment as Qualified Medical Evaluator" form shall be preserved for each QME during the period(s) of his or her appointment as a QME. The "Request for Qualified Medical Evaluator" forms may be destroyed by the Medical Director two years after the date of receipt.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061 and 4062, Labor Code; and Section 14755, Government Code.
s 39.5. Records, Retention by QMEs.
(a) All QMEs shall retain all comprehensive medical-legal reports completed by the QME for a period of five years from the date of the employee's evaluation. Upon written request, a QME is required to return original radiological and imaging studies and or original medical records.
(b) An evaluator shall submit all comprehensive medical/legal reports performed as a QME under this article to the Medical Director upon request for a review by the Medical Director. Failure to submit evaluations upon request by the Medical Director may constitute grounds for disciplinary action pursuant to Section 60.
Note: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061 and 4062, Labor Code; and Section 14755, Government Code..
s 40. Disclosure Requirements: Unrepresented Workers.
(a) A QME shall advise an unrepresented injured worker prior to or at the time of the actual evaluation of the following:
(1) That he or she is entitled to ask the QME and the QME shall promptly answer questions about any matter concerning the evaluation process in which the QME and the injured worker are involved;
(2) That subject to Section 41(e), the injured worker may discontinue the evaluation based on good cause. Good cause includes discriminatory conduct by the evaluator towards the worker based on race, sex, national origin, religion, or sexual preference, and instances where the evaluator requests the worker to submit to an unnecessary exam or procedure.
(b) When required as a condition of probation by the Council or his/her licensing authority, the QME shall disclose his/her probationary status. The QME shall be entitled to explain any circumstances surrounding the probation. If at that time, the injured worker declines to proceed with the evaluation, such termination shall be considered by the Council to have occurred for good cause.
(c) If the injured worker declines to ask any questions relating to the evaluation procedure as set forth in Section 40(a), and does not otherwise object on the grounds of good cause to the exam proceedings under Section 41(a) during the exam itself, the injured worker shall have no right to object to the QME comprehensive medical-legal evaluation based on a violation of this section.
Note: Authority cited: Sections 139.2 and 5307.3, Labor Code. Reference: Sections 139, 139.2, 4060, 4061 and 4062, Labor Code
s 41. Ethical Requirements.
(a) All QMEs, regardless of whether the injured worker is represented by an attorney, shall:
(1) Maintain a clean, professional medical office (as defined in Section 1(m)) at all times including functioning evaluating medical instruments and equipment appropriate to conducting the evaluation within the physician's scope of practice.
(2) Schedule all appointments for comprehensive medical-legal evaluations without regard to whether a worker is unrepresented or represented by an attorney. A QME shall not refuse to schedule an appointment with an injured worker solely because the worker is not represented by an attorney or because a promise to reimburse or reimbursement is not made prior to the evaluation.
(3) Not request the employee to submit to an unnecessary exam or procedure.
(b) QMEs selected by an unrepresented injured worker from a three-member panel provided by the Council shall not engage in ex parte communication in violation of Labor Code Section 4062.2.
(c) All QMEs, regardless of whether the injured worker is represented by an attorney, shall with respect to his or her comprehensive medical-legal evaluation:
(1) Refuse any compensation from any source contingent upon writing an opinion that in any way could be construed as unfavorable to a party to the case.
(2) Review all available relevant medical and non-medical records and/or facts necessary for an accurate and objective assessment of the injured workers' case before generating a written report.
(3) Render expert opinions or conclusions without regard to an injured workers' race, sex, national origin, religion or sexual preference.
(4) Render expert opinions or conclusions only on issues with regard to which the QME has adequate qualifications, education, and training. All conclusions shall be based on the facts and on the QME's training and specialty-based knowledge and shall be without bias either for or against the injured worker or the employer.
(5) Present a report that addresses all relevant issues, is ratable by the DEU, if applicable, and complies with all relevant guidelines of the Industrial Medical Council.
(d) All aspects of all physical and/or psychological comprehensive medical-legal evaluations, including history taking, shall be directly related to medical issues as presented by any party or addressed in the reports of treating physician(s).
(e) No physician certified by the IMC as a QME, or his or her agent, shall contact a QME for the purpose of influencing that QME's opinions or conclusions in any QME evaluation.
(f) No QME shall schedule appointments to the extent that any injured worker will be required to wait for more than one hour at a QME's office prior to being seen for the previously agreed upon appointment time for an evaluation. If the injured worker is unrepresented and is not seen by the QME within one hour, he or she may terminate the exam and request a replacement evaluator from the Council. No party shall be liable for the terminated exam. The QME may explain any reasons for the delay to the injured worker and, provided both parties agree, the evaluation may proceed or be rescheduled at a later date. If the evaluation is rescheduled, the QME shall provide notice to the claims administrator or, if none, the employer within 5 working days after rescheduling the appointment.
(g) If the injured worker terminates the examination process based on an alleged violation of either Section 40 or Section 41(a) and the Appeals Board later determines that good cause did not exist for the termination, the cost of the evaluation shall be deducted from the injured worker's award. A violation of Section 40 or of any part of section 41(a) shall constitute good cause for purposes of an Appeals Board determination. No party shall be liable for any cost for medical reports or medical services delivered as a result of an exam terminated for good cause.
(h) Nothing in this section shall require a QME to undertake or continue a comprehensive medical-legal evaluation where the injured worker or his/her representative uses abusive language towards the QME or the QME's staff or deliberately attempts to disrupt the operation of the QME's office in any way. The QME shall state under penalty of perjury, the facts supporting the termination of the evaluation process. Upon request, the Medical Director shall investigate the facts and make a final determination of the issue(s).
(i) Nothing in this section shall require a QME to undertake or continue a comprehensive medical-legal evaluation where the injured worker is intoxicated or under the influence of any medication which impairs the injured worker's ability to participate in the evaluation process. The QME shall state under penalty of perjury, the facts supporting the termination of the evaluation process. Upon request, the Medical Director shall investigate the facts and make a final determination of the issue(s).
Note: Authority cited: Sections 139.2, 5307.3 and 5307.6, Labor Code. Reference: Sections 139, 139.2, 4060, 4061, 4062 and 4062.2, Labor Code
s 42. Disciplinary Proceedings.
Note: Authority cited: Sections 139.2 and 5307.3, Labor Code; Section 11370 et seq., Government Code; and Section 11500 et seq., Government Code. Reference: Sections 139, 139.2, 4060, 4061 and 4062, Labor Code
s 43. Method of Measurement of Psychiatric Disability.
The Method of measuring the psychiatric elements of a disability shall be as set forth below in the "Psychiatric Protocols" as adopted by the Industrial Medical Council on July 16, 1992, and amended on March 18 and October 25, 1993.
Chapter I.
OUTLINES OF EVALUATION REPORTS
As a means of introducing some standardization to the contents evaluation reports, two model outlines are presented in this Chapter. Subchapter A, the Evaluation Report for Psychiatric Disability, is a guide for the physician, who may be either a psychiatrist or psychologist, who is conducting evaluation of psychiatric injuries. It assures that the clinician has provided all the information and opinions required b W.C.A.B. Rules of Practice and Procedure Section 10606. It also assures that the clinician has conducted the evaluation in a manner consistent with the requirements of the California Labor Code. Subchapter B, the Psychological Assessment Report, is a guide for the psychologist in those instances where the psychologist's role is to provide psychologist assessment as part of a collaborative evaluation report of psychiatric unjury. The latter's findings are to be assimilated into the evaluation report of the independent examiner, supported in detail by a complete psychologist assessment report which includes test scores. Additonal guidlelines with respect to psychologist testing are also provided. (continued)