"I think this can be fixed...but if someone doesn't speak up, it won't get fixed...it seems like most attorneys have 'just thrown their hands up,'" but "if they're not complaining about the situation, they're not practicing workers' compensation law." Alan Gurvey
Published on 06/05/2014 by WorkCompCentral, authored by Sherri Okamoto
California attorneys say the Division of Workers' Compensation has largely cleared a backlog that delayed the issuance of qualified medical evaluator panels for six months, but now they have a new problem.
When applicants do get a panel, they have trouble making a timely appointment with the QME or discover that the doctor selected from the panel is no longer doing QME work, according to several attorneys who spoke with WorkCompCentral. Santa Cruz applicant attorney Gilbert Stein of Rucka, O'Boyle, Lombardo & McKenna on Wednesday declared that the QME system "is broken."
He said he has had several cases where one of the parties has had to file a declaration of readiness with an administrative law judge or request a conference with the Workers' Compensation Appeals Board just to get a panel. Then, getting a second evaluation with a different specialty when the AME/QME requests is also difficult. For all that the DIR has done, Stein said, it is "still a failed system."
According to the Division of Workers' Compensation Medical Unit, its staff is currently issuing panels in response to requests in cases involving unrepresented workers that were filed on May 15. The staff issued panels in response to requests for cases involving workers with attorneys that were filed on May 13, and is working on requests for replacement panels filed on April 7. efense attorney Michael Peabody of Bradford & Barthel on Wednesday said he's been getting panels issued within a month or two of making a request, and he said he is impressed with the improvement the DIR has made in its response times.
At one point in 2012, the backlog had stretched to 10 months, and for most of 2013, it was taking about six months for a panel to issue a decision in cases involving represented workers. The Medical Unit finally caught up with the filings last October, Executive Medical Director Rupali Das said last December.
But now that there's no problem getting panels issued, attorneys say, they're having problems with the panels themselves.
Defense attorney Tim Kinsey of Grancell, Stander, Reubens, Thomas & Kinsey said Wednesday that he's had problems with doctors on the QME panel not being able to set an appointment with the injured worker within 90 days, or doctors no longer doing QME work.
When a QME is unable to schedule the evaluation within 90 days of the date of a party's initial appointment request, DIR regulations provide that either party may report the unavailability of the QME and the Medical Unit is required to issue a replacement panel. The parties can request a replacement if the doctor is no longer doing QME work as well.
Kinsey said he thought doctors who decide to become QMEs should be obligated to tell the DIR if they no longer provide QME services, and that they shouldn't be able to quit being QMEs if they have appointments pending.
Right now, he said he's waiting for a replacement panel to issue in one of his cases, he said, because the doctor who was set to be the QME after each of the parties exercised their ability to strike the other two doctors on the panel had decided to stop doing QME work. This means the parties − who already waited about a month to get the panel − now have to wait two more months for a replacement panel. Such a delay in the case could easily have been avoided if the doctor's name hadn't been on the original panel to begin with, Kinsey suggested.
Even in cases where the worker is able to get before a QME and be evaluated, Kinsey said, it's not all smooth sailing. Even though QME doctors need to pass a test to become QMEs, and they are subject to continuing education requirements, Kinsey said there are some who have "no real understanding of the medical-legal issues in workers' compensation" and "cannot write a coherent report to help the parties move forward."
If the report doesn't address all the issues that the parties have asked the QME to address, or it's poorly written, then the parties will have to depose the doctor or request a supplemental report, and that just slows down the process of the case more.
California's current QME panel procedure went into effect in April 2004, after the passage of Senate Bill 899. Before then, the defense and the applicant could each select their own QME to render admissible opinions. But SB 899 got rid of the "dueling doctors" aspect of litigating a comp claim, a change that was expected to expedite the claims process and reduce the costs of litigation.
While having more than one QME in a case was more expensive than having just one, Kinsey said, at least under the old system the defendants were choosing who they were paying to be their medical expert and they could avoid the doctors they didn't like. Now, that's not always possible.
Jim Butler, president of the California Applicants' Attorneys Association, said he thought that the QME system "does not work for injured workers or employers."
The changes brought by Senate Bill 899 that "were intended to prevent gaming the system instead have led to gridlock for all parties," Butler said. "It is long past time that the DWC and the Legislature revisit the QME system so that workers get the treatment they need sooner and we save the system money that could be going to increase temporary disability payments which are abysmally low."
He added that "CAAA would welcome an invitation with the DWC to offer our concrete suggestions on how to improve the system."
San Diego applicant Attorney John Don said Wednesday that his biggest problem has been getting additional QME panels issued.
Last October, the DIR changed the form it uses for requesting an additional QME panel. Under the old form, a party could request an additional panel if the parties agreed one was necessary, if a judge determined one was necessary or the agreed medical evaluator or qualified medical evaluator has advised that there are issues that need to be addressed outside the evaluator's area of clinical competence. Under the new version of the form, a party can only request an additional panel if the parties agree or if a QME in acupuncture has said a QME in a different specialty is necessary.
Don said he has been unsuccessful in getting opposing counsel to agree to additional QME panels several times now, so he winds up needing to pursue a discovery order, which serves to halt the progress of the case.
Another tact he has tried is requesting a second opinion from a doctor within the employer's medical provider network. The problem he runs into in this scenario though, is that the MPN doctors are afraid of being kicked out of the MPN.
"It's like pulling teeth trying to get a legitimate report on a compensable consequence injury," Don complained.
If he could send his client to a QME, or at least get an opinion from a doctor who isn't afraid of being kicked out of an MPN, Don said, "at least I could litigate my case to justice." As things stand right now, Don said, "it's an uphill battle just to get the necessary evidence I need to go to trial."
Applicant attorney Alan Gurvey of Rowen, Gurvey & Win said Wednesday that even though the DWC is issuing panels faster, getting the panel just "starts a cascade of problems." For example, Gurvey said he has a client who he has been trying to get before a QME for more than two years.
The worker got an appointment with a QME in August 2012, but his client got lost on the way to the doctor's office and the doctor refused to see the worker when he arrived late. The parties attempted to reschedule the appointment, but by then, the doctor had decided to stop doing QME work.
Gurvey requested a replacement panel, which issued in March 2007. The doctor selected as the QME after the parties went through the striking procedure was unable to set an appointment for the worker ithin 90 days, so Gurvey again requested another panel.
A new panel was issued in May 2013, and again, the doctor selected as the QME after the parties went through the striking procedure was unable to set an appointment for the worker within 90 days.
Gurvey requested another panel yet again in July 2013, but the defense attorney objected to the composition of the panel because two of the doctors on the panel were ostensibly within the same medical practice. From that point until now, Gurvey said, the case has been at a stand-still and his client has still not had a medical evaluation.
"It's so frustrating!" he exclaimed.
Gurvey said he was so appalled by what had happened to his client, and "the injustice of this system," that he last month wrote a letter to Das − and others in the DIR administration − detailing the situation and calling on the DIR to take some sort of action.
"Enough is enough," he said.
Gurvey said he thought the DIR should be requiring doctors to be able to set appointments within 90 days if they want to be QMEs and should be kicking doctors off the QME roster if they can't do it.
He said he also thought that the DIR should be able to make sure the Medical Unit isn't issuing panels with two doctors from the same medical practice, or doctors who have left the practice of medicine.
"I think this can be fixed," Gurvey said, "but if someone doesn't speak up, it won't get fixed."
He said it seems like most attorneys have "just thrown their hands up," but "if they're not complaining about the situation, they're not practicing workers' compensation law."
Das said Wednesday that she had received Gurvey's letter and has issued a written response.
As for the concerns he raised, Das said the DIR is issuing timely responses to requests for QME panels and that the DWC is developing an online submission process for initial panel requests in represented cases to help expedite the process even further.
"We will be working on the system design over the next few months and the solution should be in place sometime between late 2014 and early 2015," Das said.