Grinberg: The New Med-Legal Fee Schedule
Thursday, April 8, 2021 | 0
This swampland or ours is all abuzz with the new fee schedule issued by the Division of Workers' Compensation and I'm eager to bring you some of the highlights.
The regulations went into effect on the unfortunate date of April 1, which led to them being largely dismissed as a hoax. That was, of course, until the sun rose on April 2 and they were still in effect.
Of note, the new regulations apply to evaluations, testimony and reports requested post-April 1, meaning any pending supplemental reports requested prior to that date should be under the old schedule.
The new fee schedule for medical-legal evolutions covers a lot of territories, and there is more to discuss than one blog post will cover, so bear with me while I spread this topic out over the course of the week.
Initially, I would note that Subsection 9793(c) offers some new definitions to work with. Now, an “evaluation” must include an actual examination of an employee. This will have significant implications for several issues of contention down at the Workers' Compensation Appeals Board. Two come to mind immediately.
Let’s say an unrepresented applicant schedules a PQME evaluation with a panel physician. The injured worker doesn’t cancel the appointment but doesn’t attend, either, and the qualified medical evaluator produces a report after reviewing records and issues a preliminary opinion, pending an in-person examination. Well, has the applicant received a “comprehensive medical-legal evaluation” under Labor Code Section 4062.1?
Pre-April 1, California Code of Regulations Section 9793(c) did not include the requirement of an examination, but now it does. Conceivably, a party could argue that there is no right to a Romero replacement panel in the above circumstance, but the new section 9793(c) would appear to cut off just such an argument.
Another area that will apply is in primary treating physician billing. How often have you seen ML-102 bills for $625 from a PTP for writing a report to the utilization review vendor appealing a UR denial? Well, without an examination, that claim is now even more absurd than it was before, since a physician examination is necessary to bill under ML102 (now ML202).
Another interesting definition that has been added is in 9793(l), which now includes “any correspondence received by the physician from the parties to the action” as part of the term “reports and documents required by the administrative director.”
Why is this one important? Well, it looks like med-legal reports sent to the parties must now include reproductions of the correspondence sent to the QME and agreed medical evaluator by the parties, pursuant to Section 9794(h).
I am paranoid and cynical, so I can imagine an applicant attorney sending a “proposed” QME letter to him that says, “Dear Dr. Dolittle, please rate my client’s paper cut. It really, really hurts and he lost the Superman band-aid his doctor gave him,” and then sending a different letter to the QME saying “Dear Dr. Dolittle, humble blogger eats puppies and hates you because you’re not a 'real' doctor, since you never mastered scalpel-throwing-self-defense.”
Reminder, dear readers, you’re here for blog posts, not to judge me.
Presumably, now, if the QME wants his or her bills paid, he or she will also include copies of the letters received in the report being sent to the parties.
Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.