Med-Legal Reports and Unrepresented Injured Workers

Saturday, May 8, 2004 | 0

Obtaining Admissible Medical Legal Reports With Unrepresented Injured Workers

By Richard Jacobsmeyer

One of the issues that has been frequently discussed since the passage of SB 899 is the ability of defendants to obtain medical legal exams under LC sections 4060, 4061 & 4062. Section 47 of SB 899 makes it clear that the changes in these code sections are applicable to all cases, regardless of the date of injury since the effective date of the legislation on 4/19/04. The undersigned believes that LC 4062.1 is the only current process for obtaining a medical legal report where the injured worker is unrepresented including cases where Injury AOE-COE is at issue and that examinations obtained under LC 4060 after 4/19/04 without following this process may not be admiss1ble. (Examinations under LC 4061 & 4062 using the QME process for unrepresented workers, commenced before 4/19/04 but completed after that date should still be admissible.)

Each of these sections references Labor Code 4062.1 for obtaining evaluations for unrepresented workers (represented cases present a different set of problems that are not the subject of this discussion). In this new process a defendant is to notify the employee that a QME examination is being requested and provide the necessary documents to request a QME panel from the Administrative Director (the forms reference the IMC still but all activities involving QME process and regulation have been handled by the AD's office since the IMC was eliminated in AB 227 effective 1/1/04). If the employee fails to request a panel within 10 days, the defendant is allowed to request the panel. Once the panel is received, the employee must select a physician from the panel for the evaluation, notify the claims administrator of the selection and schedule an exam. If the employee fails to do so with the time set by law, the claims administrator is allowed to select any one of the three QMEs for the evaluation and schedule the examination.

The perceived problem with this process has been the concern that the AD is not ready to implement the new procedure and the lack of notices to the employees about the process especially the consequences of failing to request a panel or to select a QME from the list when supplied.

The undersigned has consulted with the AD's office and has been advised that as far as implementation of the process is concerned, they are ready to proceed [Ed. Note: indeed, the AD has issued an advisory that parties are to use current forms until new forms are promulgated, and has publicly begun the process of soliciting and registering physicians). The AD will accept panel requests from claims administrators where they can demonstrate that notice has gone to the injured worker and there has been no request for a panel. The AD has also devised a notice to the employee about the consequences of not selecting and arranging for a QME evaluation within the time frames of 4062.1. As yet however there is no published notice to provide employees with notice that if they fail request a panel that the claims administrator may do so.

Since this process is the only way to obtain a medical legal report in cases where the injured worker is unrepresented, the following procedure should result in obtaining an admissible medical legal report under 4060, 4061 or 4062.

* With objection to the PTP under LC 4061/4062 or where a request for a medical exam is being made under4060, forward the usual notices for requesting a QME exam. Include in your notice language similar to the following:

"You are being asked obtain an examination with a Qualified Medical Examiner (QME) to be selected from a panel that will be provided by the Division of Workers' Compensation. The enclosed forms should be completed and sent to the Division of Workers' Compensation within the next 10 days. If you fail to complete the forms requesting a QME panel the law allows your claims administrator to make the request for the panel and we will complete and forward the request for a panel of Qualified Medical Examiners."

* If the employee fails to request the QME panel within 10 (plus 5 days for mailing under CCP 1013.5) the claims administrator should file the request for the QME panel. I would recommend that when submitting the request for a QME panel that you also include a copy of the notice to the employee showing that you have given notice to them that they have been requested to apply for a panel more than 15 days before your application is submitted to the AD. The party filing the panel request is allowed to determine the specialty of the panel that is being requested.

* The AD's office will provide copies of the panel to both the employee and the claims administrator. The employee is required to schedule an examination and notify your office of the selection within 10 days of the issuance of the panel. If the employee notifies you of the selection within that time frame but has not scheduled the examination you are to arrange for the examination. You are not required to provide notice to the employee of the obligation to select a QME or the consequences for failing to do so. The AD will provide notice to the employee on this issue with the panel of physicians.

* If the employee fails to notify the claims administrator of the selection of a QME to perform the examination within 10 days of the issuance of the panel by the AD's office, the claims administrator may select any of the QMEs on the panel to perform the examination and shall arrange for the appointment giving notice to the injured worker along with estimated travel expense

By following the above procedure a claims administrator should be able to arrange for an admissible medical legal examination under any of the authorizing code sections. If you have any questions about this process, please feel free to contact me by email or phone.

Article by Richard Jacobsmeyer of the law firm Adelson, Testan, Brundo & Popalardo. "Jake" is the Managing Partner of the firm's East Bay Office (Concord, Ca.) and can be reached by e-mail at richardjacobsmeyer@atblaw.net or by phone at (925) 609-1990.

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