Grinberg: DIR Moves to Extend Emergency Telemedicine Regs

Thursday, October 13, 2022 | 0

If you’ve been waiting for the emergency telehealth rules to expire, I have some rather bad news for you. While the current 8 CCR 46.3 rules are set to expire on Tuesday, the Division of Workers' Compensation intends to extend the regulations another 90 days.

Gregory Grinberg

What’s important about these regulations? The regulations allow QMEs and AMEs to conduct medical-legal evaluations under certain conditions. Previously, Rule 34(b) allowed examinations to be conducted physically only in the office of the QME or AME.

Lots of my colleagues have objections to telemedicine med-legal examinations, and I certainly see merit in these arguments: A physical exam cannot be properly done over video, nor can range of motion be adequately measured. An examinee can be fed information by someone off-screen or terminate the evaluation abruptly and claim technical difficulties.

Naturally, some folks in the workers’ compensation community are cheering the anticipated end of telemedicine examination.

If the Workers' Compensation Appeals Board proceeds with extending the telemedicine regulation, we can expect the status quo for another 90 days afterward unless the regulation is made permanent, rather than part of the “emergency.”

As my well-informed readers will recall, the WCAB recently had attorneys return to in-person trials and expedited hearings back in March of this year. So, I can’t help but ask: What is the difference between the two? What compelling need is there for in-person trials that is not needed for med-legal examinations? Or, by contrast, what makes med-legal examinations effective when conducted via telemedicine that doesn’t equally apply to in-person trials?

As any Canada goose farmer will tell you in between giant mouthfuls of maple syrup and glances at the local hockey game, what is good for the goose is good for the gander.

In any case, I think we can all feel it in the air. As the panic of the pandemic is dissipating and we’re all getting on with our lives — returning to normal, rather than arriving at a “new” normal — we are coming to a very important fork in the road: Is workers’ compensation going to go effectively remote, with video deposition, telemedicine and video trials, or will we revert to an in-person system?

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.