Panel QME and the Different Body Parts

Saturday, June 3, 2006 | 0

Initially, it is worth noting that LC 139.2, which regulates the "Appointment, qualification, suspension, termination of QMEs; timeframes, guidelines, procedures, and admissibility of medical evaluations," was amended by SB 899. The employer community sought, and was granted, everything it ever wished for, and ever wanted for Christmas, on April 19, 2004, the date of enactment of SB 899.

Gee whiz, there are no more 'dueling QME' evaluations for injuries sustained on or after 1/1/05; there is a 24 visit cap on chiropractic and PT; the UR physician is now "King-For-A-Day"; ACOEM is the bible, and last, but certainly not least, the employer has 100% medical control for the life of the claim by utilizing their power to create a hand-picked group of physicians who are as employer friendly as it gets, and designate these physicians as their MPN physicians.

The employer community should be grinning ear-to-ear --- but instead, it now sounds like a case of "be careful of what you wish for - for you might get it" has reared its head, and the employer community is complaining and crying in their beer.

Perhaps it's only deja vu, but it kind of reminds me of the PTP presumption the employer community lobbied long and hard to obtain. Once they got the presumption, it bit them in the butt.

Any QME physician, as defined in LC 3209.3, must be properly licensed in California. (See LC 139.2(b).) The QME must pass "an examination written and administered by the administrative director for the purpose of demonstrating competence in evaluating medical-legal issues in the workers' compensation system." (See LC 139.2(b)(1).)

If the QME is an MD, he or she must be either "board certified" (See LC 139.2(b)(3)(A).) or "has qualifications that the administrative director and either the Medical Board of California or the Osteopathic Medical Board of California, as appropriate, both deem to be equivalent to board certification in a specialty." (See LC 139.2(b)(3)(D).)

If the QME is a chiropractor, there is an additional burden. He or she must have "completed a chiropractic postgraduate specialty program of a minimum of 300 hours taught by a school or college recognized by the administrative director, the Board of Chiropractic Examiners and the Council on Chiropractic Education."

Regardless of specialty, in order to be reappointed as a QME, any physician as defined in LC 3209.3 must have "completed within the previous 24 months at least 12 hours of continuing education in impairment evaluation or workers' compensation-related medical dispute evaluation approved by the administrative director." (See LC 139.2(d)(3).)

(This is comparable to the requirement for an attorney to keep up-to-speed by obtaining the mandated number MCLE credits every 2 years.)

LC 139.2(d)(2) clearly reveals one basis for a QME to have his ticket yanked. All one need to do is demonstrate the QME is incapable of writing a properly admissible report 5 times in any 2-year period:

"Has not had more than five of his or her evaluations that were considered by a workers' compensation administrative law judge at a contested hearing rejected by the workers' compensation administrative law judge or the appeals board pursuant to this section during the most recent two-year period during which the physician served as a qualified medical evaluator. If the workers' compensation administrative law judge or the appeals board rejects the qualified medical evaluator's report on the basis that it fails to meet the minimum standards for those reports established by the administrative director or the appeals board, the workers' compensation administrative law judge or the appeals board, as the case may be, shall make a specific finding to that effect, and shall give notice to the medical evaluator and to the administrative director. Any rejection shall not be counted as one of the five qualifying rejections until the specific finding has become final and time for appeal has expired."

In addition, per LC 139.2(k), the AD can yank a QME ticket for failing to timely issue a report.

It has been stated by those on the defense side: "Prior PQME could have been for Ortho and now the IW needs internal. Problem is that some PQMEs or quite a few PQMEs are either deceased, no longer in practice, etc. I would strongly encourage the use of an AME in all specialties instead."

In this scenario, the "prior PQME" is clearly unavailable, and a new PQME panel should be issued.

I'm not surprised that defendants "strongly encourage the use of an AME in all specialties." The defendant will not agree to an AME that is known to be IW friendly --- so this is one way of selecting a physician who is known to 'split-the-baby-down-the-middle' to the benefit of the defendant, and to the detriment of the IW.

As the AA bar wakes up, smells the coffee, and realizes that they are far better off with the devil-they-do-not-know, as opposed to the devil-they-know who will 'split-the-baby-down-the-middle' --- there will be fewer agreements on an AME and many more 'AA-strikes-one-DA-strikes-one, and whoever is left over conducts the evaluation.

Although the AA bar is still reluctant to go the panel route, the DA bar is even more reluctant.

One noted defense attorney has complained: "If one looks as the QME discipline page the physicians who have been removed from QME status because they are unable to write a comprehensible report are nowhere to be found."

Perhaps this defense attorney is suffering from a similar angst I suffer from: The failure of the provider community to complain to the Audit Unit about payer malfeasance. If the QME fails to write a proper report that can be rated and is admissible, submit a complaint. If the QME fails to issue a report timely, submit a complaint.

Those providers who whine about payer malfeasance, but refuse to submit complaints to the Audit Unit, deserve to suffer from continued payer malfeasance. Those who whine about a QME who fails to write a timely and admissible report should not be heard to complain about an incompetent QME, unless they submit complaints that trigger yanking the QME ticket.

Whining, but doing nothing about it, is like complaining about a politician who was voted into office, when the whiner refuses to vote.

The same noted defense attorney claimed: "Even if competent as a QME is, the idea that the physician is necessarily in a position to select all of my needed specialists in other areas is a complete fiction and not based in reality. I simply disagree with the DEU on this issue and I suspect that the vast majority of practicing attorneys, on both sides, would agree."

The problem with this line of reasoning is that it is the injured workers case, not the DA's or the AA's case. Both are just hired guns for their respective clients.

The DA can no longer select a QME who will issue a report where the outcome is known well before the IW is even evaluated. This sword cuts both ways --- the AA can no longer select a QME who will issue a report where the outcome is known well before the IW is even evaluated.

Thus, it is no longer 'business as usual.' Neither the DA bar of the AA bar want a 'the-devil-they-do-not-know' resolving a medical dispute --- for both the DA and the AA have lost the ability of choosing a QME whose report is foreseeable prior to the evaluation.

However, as we transition into the current procedure for dispute resolution per LC 4062.2, the AA community will find they will fare far better if they go the panel route.

The PQME gets to pick the specialist consulting physician to opine on areas outside the PQMEs area of expertise --- not the DA or the AA. Although this loss of control is bothersome to the DA and AA, this is one aspect of SB 899 that is truly beneficial to an IW.

The wise IW, well coached by their PTP, will remain unrepped initially, have a dispute resolved by a PQME, then hire an AA to handle the legal aspects of the claim --- with the clear understanding that the AA will not agree to an AME to resolve any future disputes.

The majority of QME physicians I know fully understand that the benefit of the doubt should be given to the IW, and furthermore, that the workers' compensation system is a benefit delivery system.

No wonder the DA bar dislikes the new LC 4062.2 panel process in situations where the AA refuses to allow the IW to be evaluated by AME Dr. Washout. It is more probable than not that the IW will get a fair shake from a PQME --- particularly when the PQME gets to pick which specialist will resolve a dispute outside the expertise of the PQME --- not the DA or AA.

By York McGavin. York can be contacted at ymcgavin@socal.rr.com

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