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Posted on February 22, 2022 | by
CALIFORNIA CODE OF REGULATIONS, TITLE 8 DIVISION 1. DEPARTMENT OF INDUSTRIAL RELATIONS CHAPTER 1. DIVISION OF WORKERS’ COMPENSATION QUALIFIED MEDICAL EVALUATOR REGULATIONS ARTICLE 3 and 4. Assignment of Qualified Medical Evaluators, Evaluation Procedure
§ 31.3. Scheduling Appointment with Panel QME
(a) When the employee is not represented by an attorney, the unrepresented employee shall, within ten (10) days of having been furnished with the form, select a QME from the panel list, contact the QME to schedule an appointment and inform the claims administrator of the QME selection and the appointment.
(b) Neither the employer, nor the claims administrator nor any other representative of the employer shall discuss the selection of the QME with an unrepresented worker who has the legal right to select the QME.
(c) If, within ten (10) days of the issuance of a QME panel, the unrepresented employee fails to select a QME from the QME panel or fails to schedule an appointment with the selected QME, the claims administrator may schedule an appointment with a panel QME only as provided in Labor Code section 4062.1(c), and shall notify the employee of the appointment as provided in that section.
(d) Whenever the employee is represented by an attorney and the parties have completed the striking processes described in Labor Code section 4062.2(c), the represented employee shall schedule the appointment with the physician selected from the QME panel. If the represented employee fails to do so within ten (10) business days of the date a QME is selected from the panel, the claims administrator or administrator’s attorney may arrange the appointment and notify the employee and employee’s attorney.
(e) If a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within sixty (60) ninety (90) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than ninety (90) one-hundred-twenty (120) days after the date of the party’s initial request for an appointment request. When the selected QME is unable to schedule the evaluation within ninety (90) one-hundred-twenty (120) days of the date of that party’s initial request for an appointment request, either party may report the unavailability of the QME and the Medical Director shall issue a replacement pursuant to section 31.5 of Title 8 of the California Code of Regulations upon request, unless both parties agree in writing to waive the ninety (90) one-hundred-twenty (120) day time limit for scheduling the initial or subsequent evaluation.
(f) The provisions of subdivision (e) of this regulation apply to both requests for an initial evaluation by a QME and requests for any subsequent evaluations by a QME.
Note: Authority: Sections 133, 139.2 and 5307.3, Labor Code. Reference: Sections 4060, 4061, 4062, 4062.1, 4062.2, 4064 and 4067, Labor Code
§ 34. Appointment Notification and Cancellation
(a) Whenever an appointment for a comprehensive medical evaluation is made with a QME, the QME shall complete an appointment notification form by submitting the form in Section 110 (QME Appointment Notification Form)(See, 8 Cal. Code Regs. § 110). The completed form shall be postmarked or sent by electronic service, or facsimile to the employee and the claims administrator, or if none the employer, within 5 business days of the date the appointment was made. In a represented case, a copy of the completed form shall also be sent to the attorney who represents each party, if known. Failure to comply with this requirement shall constitute grounds for denial of reappointment under section 51 of Title 8 of the California Code of Regulations.
(b) The QME shall schedule an appointment for the first comprehensive medical-legal examination which shall be conducted only at the a medical office listed on the panel selection form or any office listed with the Medical Director provided there is written agreement by the parties to use a different office listed with the Medical Director. Any subsequent evaluation appointments may be performed at another medical office of the selected QME if it is listed with the Medical Director and is within a reasonable geographic distance from the injured worker’s residence
(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 Title 8 of the California Code of Regulations, 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.
(d) An evaluator, whether an AME, Agreed Panel QME or QME, shall not cancel a scheduled appointment less than six (6) business days prior to the appointment date, except for good cause. Whenever an evaluator cancels a scheduled appointment, the evaluator shall advise the parties in writing of the reason for the cancellation. The Appeals Board shall retain jurisdiction to resolve disputes among the parties regarding whether an appointment cancellation pursuant to this subdivision was for good cause. The Administrative Director shall retain jurisdiction to take appropriate disciplinary action against any Agreed Panel QME or QME for violations of this section.
(e) An Agreed Panel QME or a QME who cancels a scheduled appointment shall reschedule the appointment to a date within thirty (30) calendar days of the date of cancellation. The re-scheduled appointment date may not be more than sixty (60) calendar days from the date of the initial request for an appointment, unless the parties agree in writing to accept the date beyond the sixty (60) day limit.
(e)(f) An Agreed Medical Evaluator A QME or AME who cancels a scheduled appointment shall reschedule the appointment within sixty (60) calendar days of the date of the cancellation, unless the parties agree in writing to accept an appointment date no more than thirty (30) calendar days beyond the sixty (60) day limit.
(f) (g) Failure to receive relevant medical records, as provided in section 35 of Title 8 of the California Code of Regulations and section 4062.3 of the Labor Code, prior to a scheduled appointment shall not constitute good cause under this section for the evaluator to cancel the appointment, unless the evaluator is a psychiatrist or psychologist performing an evaluation regarding a disputed injury to the psyche who states in the evaluation report that receipt of relevant medical records prior to the evaluation was necessary to conduct a full and fair evaluation.
(g) (h) An appointment scheduled with an evaluator, whether an AME, Agreed Panel QME or QME shall not be cancelled or rescheduled by a party or the party’s attorney less than six (6) business days before the appointment date, except for good cause. Whenever the claims administrator, or if none the employer, or the injured worker, or either party’s attorney, cancels an appointment scheduled by an evaluator, the cancellation shall be made in writing, state the reason for the cancellation and be served on the opposing party. Oral cancellations shall be followed with a written confirming letter that is electronically served, faxed or mailed by first class U.S. mail within twenty four hours of the verbal cancellation and that complies with this section. An injured worker shall not be liable for any missed appointment fee whenever an appointment is cancelled for good cause. The Appeals Board shall retain jurisdiction to resolve disputes regarding whether an appointment cancellation by a party pursuant to this subdivision was for good cause.
(h) (i) The date of cancellation shall be determined from the date of postmark, if mailed, or from the electronic proof of service, if electronically served or facsimile receipt date as shown on the recipient’s fax copy.
NOTE: Form referred to above is available at no charge by downloading from the web at http://www.dir.ca.gov/dwc/forms.html or by requesting at 1-800-794-6900.
Note: Authority cited: Sections 133, 139.2 and 5307.3, Labor Code. Reference: Sections 4060, 4061, 4062, 4062.1, 4062.2 and 4067, Labor Code.
DWC – Proposed QME Emergency Regulation in Response to COVID-19 Pandemic § 46.3 Emergency Regulation Regarding Remote Health Medical-Legal Evaluations in Response to continued COVID-19 Pandemic
(a) During the period that this emergency regulation is in effect, a A remote health evaluation by a QME, AME, or other medical-legal evaluation may be performed in the circumstance where the physician and the injured worker are not in the same physical space or site during the evaluation. The evaluation shall be performed by way of telehealth through the use of electronic means of creating a virtual meeting between the physician and the injured worker where both parties can visually see and hear each other and may not be in the same physical space or site.
A QME or AME may complete a medical-legal evaluation through telehealth remote health when a hands on physical examination is not necessary and all of the following conditions are met:
There is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), or the physician is asked to address the termination of an injured worker’s indemnity benefit payments or address a dispute regarding work restrictions; and
There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the QME. Agreement to the telehealth evaluation cannot be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied under this section, they may file an objection with the Worker’s Compensation Appeals Board, along with a Declaration of Readiness to Proceed to set the matter for a hearing;
The telehealth remote health evaluation conducted by means of a virtual meeting is consistent with appropriate and ethical medical practices and the AMA Guides 5th edition, as determined by the QME and the relevant medical licensing board; and
The QME attests in writing that the evaluation does not require an in person physical exam.
For purposes of evaluations pursuant to subdivision (a) of this emergency regulation, telehealth Remote health means remote visits via video-conferencing, video-calling, or such similar technology that allows each party to see and converse with the other via a video and audio connection. The evaluation must be conducted with the same standard of care as an in person visit and must comply with all relevant state and federal privacy laws.
(b) During the time this regulation is in effect, section 34(b) of title 8 of the California Code of Regulations is suspended and the following is effective:
The QME shall schedule an appointment for the first comprehensive medical-legal evaluation which shall be conducted at a medical office listed on the panel selection form or any office listed with the Medical Director provided there is agreement by the parties. Any subsequent evaluation appointments may be performed at another medical office of the selected QME if it is listed with the Medical Director and is within a reasonable geographic distance from the injured worker’s residence.
For purposes of QME telehealth remote health evaluations conducted under this regulation, the medical office listed on the panel selection form for the QME shall be deemed the site of the telehealth remote health evaluation. For all other telehealth remote health evaluations conducted under this regulation, the medical office of the physician that is within a reasonable geographic distance from the injured worker’s residence shall be deemed the site of the telehealth remote health evaluation.
Note: Authority Cited: Section 133, 139.2 and 4627, 5307.3 Labor Code. Reference Citations: Sections 4060, and 4603.54061, Labor Code.