New Timeline to set QME Evaluations: Amendment to Regulations for Medical Legal Evaluations

February 7, 2023

On February 2, 2023 the Division of Workers Compensation filed with the Secretary of State changes to Regulations related to scheduling, remote health (previously known as telehealth), and requesting replacement Panel QMEs.

Updates were made to Title 8, California Code of Regulations sections 31.3, 31.5, 34, 46.3 and Forms 31.5 & 108.

According to the Administrative Director, the driving purpose behind these amendments is to increase availability of physicians and reduce replacement panels that cause delays in the system. Overall, the amendments allow more flexibility with scheduling medical legal evaluations resulting in timely reports and benefits paid to injured workers.

Timing to schedule an evaluation

The most significant change came with extending the time to schedule an evaluation with a QME- previously 60 days; now to 90 days. Should a QME be unable to set an appointment within ninety (90) days, the party may waive the right to a replacement to accept an appointment, but no more than one hundred twenty (120) days.

Formerly, an evaluation had to be set within 60 days of an appointment request and a party could waive this timeframe if the examination could be set within 90 days. Now, we have an increase to 90 days and a right to waive up to 120 days. This applies to initial and subsequent evaluations.

Regulation 31.5 was also updated to reflect the new timeframe.  A party may now request a replacement panel only if the QME cannot set within 90 days or within 120 days (if waived) from the initial request of an appointment.

Office Locations

An additional prominent change allows a QME to schedule an examination at the medical office listed on the panel or any office listed with the Medical Director with an agreement from the parties (emphasis added).

Previously, initial evaluations were required to take place in the medical office listed on the panel. If the physician was unavailable in that office or had closed that office location, a replacement panel could be sought.  Now, parties may agree to any office location listed with the medical director.

This amendment will allow parties to schedule an initial evaluation at a different office where the QME may have availability within 90 days. However, parties need to keep in mind the injured workers location. The new office location should be within a reasonable geographic distance from the injured workers’ residence.

Another change within Regulation §34 pertains to cancelation and re-scheduling of a QME or AME exam.  A QME or AME who cancels a scheduled appointment may now reschedule the appointment within 60 days of the date of cancelation.

Previously, a canceled appointment by the medical evaluator had to be rescheduled within 30 days. This new rule allows rescheduling within 60 days unless the parties agree in writing to a later date.

Remote Health

Remote health (AKA Telehealth) evaluations are here to stay.

The DWC updated 8 Cal. Code Reg. §46.3 to “Remote Health Medical-Legal Evaluations.” This is no longer an emergency regulation pertaining to the Covid-19 Pandemic.

The rules define remote health as visits or evaluations that can be conducted via video-conferencing or similar technology.

A medical-legal evaluation through remote health is allowed when there is a disputed medical issue involving causation, termination of indemnity benefits or work restrictions and the parties agree to the evaluation.

Language discussing unreasonable denial of telehealth evaluations was removed. The DWC indicated this language was removed as it was repetitive and the Appeals Board has jurisdiction to adjudicate these disputes through Labor Code §§5300 and 5301.

Lastly, typographical errors in Form 108 were corrected.

Conclusion

Will these new rules help reduce replacement panel requests? Likely. It may also increase the periods carriers are required to issue benefits pending a QME evaluation.

The new rules will give parties the latitude to schedule evaluations further out (90 days, up to 120 days if agreed upon).  However, they may also limit our recourse in seeking replacement panels when desired.

To read the final text of these regulations, visit here.

Written By:

Yoseily V. Garcia, Esq. of our LFLM-San Francisco Office

Laughlin, Falbo, Levy & Moresi, LLP.

www.lflm.com