Grinberg: Telemedicine QME Eval Struck Down Again

Thursday, July 26, 2018 | 0

Here's a report of a victory for defendants, and also for man’s ever intensifying battle against technology. The case is Beitpolous v. California Correctional Healthcare Services (a WCAB panel decision).

Gregory Grinberg

In a denied case, applicant obtained a physical medicine and rehabilitation panel, and after the strike process the qualified medical evaluator remaining was listed as appearing via telemedicine (“Evaluation will take place through the use of telehealth using interactive audio, video or data communications”).

The telemedicine exam was conducted by having an assistant call ahead of the evaluation and take applicant’s complete history. Then, at the exam, the panel qualified medical evaluator appeared via video conference while a QME chiropractor was in the exam room with the applicant, and conducted the actual exam and took measurements (within view of the actual QME).

Defendant apparently was not advised that the QME exam would be via telemedicine until it received the QME's report, which reflected the same. At that time, after defendant refused to accept the case based on the QME’s opinion, applicant set the matter for an mandatory settlement conference. 

At the MSC, defendant objected to the panel because the exam was conducted via telemedicine.

The workers' compensation judge ruled in favor of the defense, disqualifying the QME because the exam was conducted via telemedicine. On removal, the Workers' Compensation Appeals Board sided with the defendant and the judge, citing Section 4628(a), which provides that no person other than the physician signing the medical-legal exam may take a history, review and summarize records, or compose the conclusions of the report.

The WCAB ruled that “constitutional principles of fairness and due process require that the identity of a physician assistant who is to physical perform the clinical examination be disclosed to the parties promptly upon the QME’s selection.”

So, absent an agreement ahead of time by the parties to allow for a telemedicine exam, it looks like any such exam would be vulnerable to an objection.

On the other hand, if the applicant's attorney really wanted to keep the QME exam, would advance disclosure cure any potential defects?

Gregory Grinberg is workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.