"...he has been seeing form letters from the DWC rejecting panel requests based on noncompliance with Regulation 30(b), and he suggested that if the DWC wants the information called for in Form 106-a included in all requests for a QME panel, then it should change Form 106 to say so." Alan Gurvey
Published on 09/16/13 by WorkCompCentral, authored by Sherri Okamoto
The regulators who control California's workers' compensation system and the attorneys who practice within it agree on one thing: The process for getting a qualified medical evaluator panel isn't working the way it's supposed to. But that's about as far as any meeting of minds goes.
The California Division of Workers' Compensation said in a press release last week that up to 90% of the requests it received this calendar year have been rejected because attorneys don't know how to follow the rules, the agency claims. It's gotten to be so bad that the DWC is holding a free internet training for claims administrators and attorneys to learn how to make proper requests.
Applicants' attorney Alan Z. Gurvey of Rowen, Gurvey & Win on Friday said that the problem comes from confusion over which form attorneys are supposed to be using and what law is governing their submissions.
Up until the passage of SB 863 last year, Gurvey explained that attorneys in cases in which there was a dispute about the compensability of a claim, the extent of disability or the need for treatment were obligated to work together to try and settle on one doctor who could evaluate the injured worker and render a medical opinion.
An attorney would have to make a request, in writing, to opposing counsel which identified what the dispute was and suggest a doctor to serve as the agreed medical evaluator for the case. If opposing counsel refused or failed to reply, then the attorney could complete DWC Form 106 asking the DWC to issue a QME panel.
The DWC would then send the parties a list with the names of three doctors, and each of the parties would get to strike one of the doctors from the list. The last doctor remaining would then evaluate the worker and return an opinion on the disputed issue.
SB 863 amended Labor Code Section 4062.2 to eliminate the need for the attorneys to try and settle on an AME before requesting a QME panel in cases based on injuries on or after Jan. 1, 2013.
After SB 863 took effect, the DWC issued an amended version of Form 106, known as Form 106-a, to incorporate this change.
Form 106-a also includes a spot for the attorney who requested the panel to identify the name of the worker's treating doctor and the date that the doctor issued a report containing the opinion or recommendation to which the attorney is objecting.
According to DIR Regulation 30(b), for all cases with a date of injury on or after Jan. 1, 2005, and all cases in which the represented parties have agreed to obtain a QME panel, the party requesting the QME panel must identify the injured worker's primary treating physician, what the requesting party finds objectionable about what that physician has said and the date that the physician made the objectionable opinion or recommendation.
Form 106 did not ask for such information, and while Form 106-a does, that updated form states that it applies only to dates of injury after Jan. 1, 2013.
In June, the DWC announced that Form 106-a will be replacing Form 106 for all dates of injury once it is approved by the Office of Administrative Law, but for now, both versions of the form are available and in use.
Gurvey said he has been seeing form letters from the DWC rejecting panel requests based on noncompliance with Regulation 30(b), and he suggested that if the DWC wants the information called for in Form 106-a included in all requests for a QME panel, then it should change Form 106 to say so.
He said that he thought the DWC was taking "a step in the right direction" by offering training on what it expects from attorneys seeking QME panels. But he said he thinks the DWC also ought to just issue the requested panels when there are "just little details" that the requesting attorney missed "due to the confusion with the forms or not understanding what the DWC wanted submitted."
Fellow applicant attorney Arjuna Farnsworth with Boxer & Gerson in Oakland said that he got a notice just last month from the DWC stating that a request he had filed in February was being rejected because of his noncompliance with Regulation 30(b).
He said he thought that since his client's date of injury was before Jan. 1 of this year, he didn't have to use Form 106-a and so he didn't have to identify his client's treating doctor or a dispute with something in the doctor's reports.
Farnsworth remarked that it is "so frustrating" that the DWC had said "you have to do X, Y and Z and then you can get a panel, and now they're saying you have to do A, B and C," and "now the whole process (of requesting a QME) has to start all over again."
He said he is planning on asking for an ex parte order from the Workers' Compensation Appeals Board to compel the DWC to issue a QME panel because his client is "being done wrong" by the delay in getting the case resolved.
Defense attorney Demetra Johal of Laughlin, Falbo, Levy & Moresi said she's had judges tell her that the solution is to file a petition with the WCAB asking for an order for the DWC medical unit to issue a panel. Johal observed that "seems to expedite the process."
In April, DWC spokeswoman Erika Monterroza acknowledged that the state had about a five-month backlog in QME requests, although attorneys say it's closer to six.
DWC Executive Medical Director Dr. Rupali Das on Friday confirmed that the backlog for represented injured worker panel requests continues, although "we consider reducing this backlog a priority and have redirected resources within the department to work on this issue."
Larry Stern, president of California Applicants' Attorneys Association, issued a statement Friday saying that the delay in receiving a response to panel requests was a concern for his organization, although this delay "doesn't just hurt injured employees, but also hurts employers because the case is in limbo waiting for the issuance of the panel."
Stern remarked that attorneys "can fix any problems with improperly submitted forms, but there will continue to be a major problem unless steps are taken to reduce the unreasonable delay in assigning panels for represented workers."
Defense attorney Michael D. Peabody of Bradford & Barthel said his experience has been that "legitimately injured workers whose cases may have been denied AOE/COE are waiting at least a year for the (QME) process to complete itself." He said the length of the process doubles if a panel list is rejected or an attorney who doesn't like the list challenges one of the doctors and requests a new one.
Peabody said he felt this situation is "unacceptable," and he suggested that having judges assign a doctor or creating an online system to generate QME lists would be the way to go.
Das said the agency is trying to tackle the backlog both "by educating stakeholders and working towards implementing an electronic submission process (for panel requests)."
Defense attorney Tahmeena I. Ahmed, the managing partner of client relations for Bradford & Barthel, said she wonders if the DWC is purportedly keeping track of how many applications it's sending back, and if the agency is also keeping tabs on how many requests they are processing.
Ahmed said she had a client complain that he submitted a request for a QME panel in April, but the request still had not been processed by July. In fact, she said, the client told her the DWC was still processing requests that had been filed six months earlier – in February.
The client was anxious about the passing time since he was anticipating that he was going to get hit with a medical lien that would be increasing by $2,000 to $3,000 each month for treatments that the applicant was getting with a nonauthorized provider, Ahmed said. Although the client will have an opportunity to contest liability for the treatment, she said, for now the client is stuck just watching the claim get more and more expensive.
"I cannot believe that every insurer in California, along with every employer, is content to allow this to continue," she said, and so Ahmed suggested that the state is placing itself at risk of a lawsuit for damages attributable to its delay in processing QME requests.
Ahmed said she thinks the DWC backlog is due, at least in part, to applicant "requests in ridiculous specialties."
The attorney said she has seen an applicant request a chiropractic panel to evaluate the applicant's irritable bowel syndrome and rhabdomyolysis – a condition in which the body's muscle tissue begins to break down. Neither of these conditions, obviously, would be in a chiropractor's area of expertise, and she said she hopes the Workers' Compensation Appeals Board sanctions litigants who request a panel in the wrong specialty as a bad-faith dilatory tactic.
Suzanne Honor-Vangerov, the managing attorney of the lien unit for Floyd, Skeren & Kelly − who prior to becoming an attorney served as manager of the DWC medical unit for seven years − said she thinks the backlog comes down to the lack of staff at the DWC and the fact that the panel requests probably aren't being completed properly.
She said she thought the DWC's claim that 90% of the requests being done wrong was probably accurate, based at least on her experience with the agency.
"For a while the DWC was not scrutinizing the accuracy of panel-request forms," Honor-Vangerov said, "but that was only a temporary reprieve and they're back to doing it now."
As she recalled, most of the time a request was improper because the requestor either "didn't understand when you can get a panel, didn't follow instructions or didn't supply appropriate documents to go along with the request," Honor-Vangerov said.
Honor-Vangerov said most people really don't realize how much work it is for the DWC to process a panel request, as "a human being has to type in every panel, and a human being has to look at every piece of mail."
The attorney said it would be easier on the DWC to process panel requests that are improperly completed because it essentially doubles the staff's workload to have to send requests back. She added that she thought DWC staff would "really prefer to be able to issue a panel (for each request), but they would really prefer that the person submitting the panel request fill it out right to begin with."
Honor-Vangerov further pointed out that the Legislature has decided that the state should have a QME process and how that should operate. She said it's not fair to blame the DWC for "enforcing a policy that the Legislature has put forth," so "if people want to make it more simple, they should go to Sacramento and ask the Legislature to simplify the process."