Young: Video Evals During the Coronavirus Emergency

Friday, March 27, 2020 | 0

Qualified medical evaluations are part of the essential plumbing of the California workers’ comp system. If that plumbing gets too backed up, we have a major mess on our hands.

Julius Young

COVID-19 is wreaking havoc on our health system and economy right now, threatening to destroy small businesses and whole industries alike. The response of policymakers at all levels to the medical and economic crisis is evolving as we speak.

What is not clear is how the California workers’ comp policymakers are going to keep the QME system running during this emergency.

The reality is that this emergency could last months. QME evaluations are being canceled or continued in droves. This will impact not only claims settlements but also impact determinations of industrial causation.

Delays can cut two ways. While some carriers may not be concerned about delays, the reality is that delays may harm employers as well as workers. Delays in AOE/COE determination may increase the amount of temporary disability liability and cause insurance carriers to lose their ability to channel treatment through their medical provider networks.

And delays in settlements may affect claims costs. If workers have COVID-caused illness on top of their industrial injury, we may see cases where the cost of treating the intermixed problems rises substantially.

These are some of the reasons why it is critical that the Department of Industrial Relations/Division of Workers' Compensation move forward expeditiously to clarify that video QMEs are acceptable during the period of this crisis.

For years I’ve noted the graying of the QME pool. Many QMEs are 60 years old or more, and they are justifiably unwilling to do in-person evals at this time.

Granted, not all QME evals lend themselves to video. But many do. That may include many evals such as psyche, internal medicine, urology, gastroenterology, dermatology, as well as uncomplicated orthopedics evals and AOE/COE evals in ortho/physical medicine, etc.

Last week the DWC issued this guidance:

DWC is currently evaluating the feasibility of telemedicine for QME evaluations and will continue to do so. The use of telemedicine for a QME evaluation may be appropriate where all parties agree that there is a medical issue in dispute which involves whether or not the injury is AOE/COE (arising out of employment/course of employment), and all parties to the action, including the physician, agree to a telemedicine evaluation in order to resolve this dispute. Although DWC is not authorizing any particular course of action, the division recognizes that in this time of medical emergency, creative delivery methods of essential medical treatment and evaluation services may be needed.

The problem with this statement is the language that the DWC “is not authorizing any particular course of action.” If you were a QME or a litigant, this might give you pause.

We will soon see whether many workers’ comp stakeholders do, in fact, stipulate to use of video evals at this time. 

But the DWC can do more. It should clearly state that during a defined period of the COVID emergency it encourages such evals, that such evals shall not be the basis for discipline and that such evals can be done, absent an order from the Workers' Compensation Appeals Board to the contrary. Parties objecting could make a showing to the WCAB why such an eval is not appropriate under the circumstances.

Let’s not let the plumbing back up.

Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.