"...it’s a 'must' for the DWC to develop and implement an electronic system for requesting QME panels so the process is more efficient.....he also supports the proposal to allow judges to resolve QME panel disputes. It is a “miscarriage of justice” to have the Medical Unit making quasi-judicial decisions." Alan Gurvey
Published 09/30/2014 by WorkCompCentral, authored by Greg Jones
Expectations are high that a proposed electronic application process will allow the California Division of Workers’ Compensation to quickly issue qualified medical evaluator panels in represented cases, but system users want some testing to ensure the system works before it becomes mandatory.
Employers and carriers who commented on a pre-proposal the division posted to its online forum earlier this month said they support the plan to allow submission of requests for an initial QME panel electronically. But they want to make sure the system is capable of determining whether a panel has already been issued or rejected and whether the request is timely.
Public comments similarly ask the DWC to phase-in another part of its proposal that would reassign the responsibility of resolving disputes over QME requests from the DWC's Medical Unit to the Workers’ Compensation Appeals Board.
The DWC is proposing regulatory changes to the QME panel request process that would require requests for an initial panel in represented cases to be submitted through its website using an online form. Written requests for an examination or a written objection would have to be scanned and uploaded into the system.
The party submitting the online request would have to serve a copy of the Online QME eForm 106, the panel list and a copy of any supporting documentation upon the opposing party within one working day of generating the QME panel list.
To account for the fact that QME applications could be filed at any time, the DWC rules would deem requests received on a weekend or holiday to have been made the next business day. Requests made Monday through Friday after 5 p.m. and before midnight would be deemed to have been made the next business day, and requests from midnight to 8 a.m. will be deemed to have been made at 8 a.m. on the same business day.
Brenda Ramirez, claims and medical director for the California Workers’ Compensation Institute, and Jason Schmelzer, a lobbyist for the California Coalition on Workers’ Compensation, both said in written comments that the DWC should undertake beta testing before launching the new online process. During the testing phase, parties would have the option of filing electronically or via paper forms, they said. That process would be similar to how the DWC implemented its Electronic Adjudication Management System; users initially had an option of whether to file court documents electronically.
“We are recommending a short time period for beta testing to be completed prior to the online QME panel process going live – such as what was done with EAMS,” Schmelzer writes. “At the present time, we have not seen any beta version of the online QME process to evaluate and test. For example, testing would tell us if a QME panel had already been issued on a case, if the online system would properly make that identification and if the request would then be rejected.”
Ramirez and Schmelzer also both recommended that the division consider a process for unrepresented workers to request a QME electronically. Under the proposed rules, an unrepresented worker would continue using the paper QME Form 105 to request a panel.
Peggy Thill, operations manager for State Compensation Insurance Fund, also expressed concern over not having a timeframe in the regulations that would allow employers and claims administrators time to update their systems and train staff.
“Undue hardship will be placed upon employers and claims administrators to comply with the new process if they are not given time for training staff and updating systems,” she said.
While the proposed rules require that a paper copy of the online form be served within one working day of generating a panel list, Thill said the DWC does not specify in its rules that the online system will automatically generate a list of evaluators. Furthermore, there is nothing in the proposed rules describing penalties for parties that do not serve a copy of the online application, and no process for parties who object to the submission of a panel QME request.
Thill also suggested the DWC revise proposed language that would shift the responsibility for deciding which panel request will be fulfilled when more than one application is received on the same day from the Medical Director to the Workers’ Compensation Appeals Board.
The DWC is proposing to repeal all language in current Section 31.1, which identifies the steps the medical director must take upon receiving multiple panel request forms on the same day that designate different physician specialties. New language proposed for the section would declare that any dispute regarding the validity of the panel QME selection list or disputes regarding the appropriateness of the specialty designation may be resolved before the WCAB.
“Shifting the responsibility of the medical director to the WCAB is likely to cause an increase in litigation at the board that has previously not manifested in court since the medical director maintained oversight over the process,” Thill writes. “Adding another layer at the WCAB is likely to produce more delays in hearing and resolving disputes.”
Thill urged the division to preserve language that would at least allow technical disputes to remain under the purview of the medical director.
Suzanne Honor-Vangerov, managing attorney of the lien unit for Floyd, Skeren & Kelly and former manager of the DWC Medical Unit, said during an interview Monday that the section the division is proposing to change deals with legal questions that would be appropriate before WCAB judges.
If two requests are received on the same day, then the one seeking a panel in the same medical specialty as the treating physician is supposed to be issued unless the other party can show good reason for why a different specialty should be granted. The two questions for a judge to resolve are whether the requests were received on the same day and whether there was good cause to allow a different specialty.
Honor-Vangerov said she sees the proposed rules as streamlining existing regulations that have been subject to some gamesmanship.
“You still have to show a judge why (a different specialty is appropriate), but the first thing is who got their request in first,” she said. “A lot of people have been misusing this regulation and trying to argue to get a replacement panel because the original requestor took a specialty different” from the one they wanted.
She said there’s a lot of fighting between applicants’ defense attorneys over the specialty of QMEs. Applicants’ attorneys typically want chiropractors and pain-management specialists while defense counsel prefers orthopedists.
Alan Gurvey, managing partner of Rowen, Gurvey & Win, said Monday that he also supports the proposal to allow judges to resolve QME panel disputes. It is a “miscarriage of justice” to have the Medical Unit making quasi-judicial decisions, he said.
“Many times a dispute is beyond the jurisdictional understanding of the Medical Unit, and you need a judge to look at the issues with the parties available for comment,” he said in an email. “The trick is to make sure that these issues go before the WCAB expeditiously, so as to not cause delay to the administration of the benefits, or to the administration of the claim.”
Gurvey also said he believes it’s a “must” for the DWC to develop and implement an electronic system for requesting QME panels so the process is more efficient.
The current QME panel process became effective in April 2004 as a replacement for the so-called “dueling doctor” approach. The change by SB 899 was expected to speed up the claims process and reduce the costs of litigation, but has been beset by backlogs.
At one point in 2012, the DWC was taking up to 10 months to issue panels in represented cases. For the first nine months of 2013, the average wait for a panel was about six months. The Medical Unit eliminated the backlog in represented cases in October.
Gurvey said an electronic request form is just the first step toward improving the QME process, but the DWC still needs to tackle some substantive issues.
“They still need to weed out doctors who are not providing adequate services in the role of a PQME,” he said in an email. “They still need to ensure that multiple doctors on a panel of PQMEs are not all at the same address or with the same phone number. And they still need to ensure that the PQMEs actually understand workers’ compensation, whether it be through testing, or other minimum acceptable requirements.”
The DWC is reviewing the comments it received in response to the draft proposal and expects to issue formal rulemaking documents in the next six weeks, according to agency spokesman Peter Melton.
Melton said the division will have to go through the full formal rulemaking process, which will include a 45-day public comment period prior to a public hearing, before it can submit the rules for the approval of the Office of Administrative Law.