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California Panel QME Evolution: Let’s Admit the Process is Flawed and Ineffective

The medical legal process has evolved over the years. The Panel QME (“PQME”) process did not exist for dates of injury prior to 2005 instead medical disputes were resolved by QME’s or AME’s selected by the parties. At trial, judges were presented with medical reports from all of the medical legal evaluators, along with the primary treating physician. In order to avoid doctor shopping, SB 899 created a new procedure, described in Labor Code Section 4062.2, to obtain medical legal reports through the PQME process for injuries after 1/1/05. The idea of having one doctor evaluate an injured worker instead of two doctors with diametrically opposed views seemed like a good idea at the outset. However, the PQME process in place has fostered gamesmanship and technical arguments where one party tries to have the existing PQME in place removed for one reason or another.

What Is a PQME?

PQME stands for Panel Qualified Medical Examiner. A PQME is essentially a second opinion doctor which an insurance company may request to examine an injured worker, usually in an effort to either confirm or contradict what the treating doctor had to say about their injuries.

Good Cause for Requesting Replacement of the Panel QME – And Good Cause for Delays

Over time, the parties have encountered flaws when using the PQME process and have availed themselves to the right to request a replacement panel. This has led to significant delays, additional discovery costs and misuse of Board time. Below is a summary of the sixteen reasons a replacement panel may be requested under 8 CCR Section 31.5(a).

  1. PQME does not practice in specialty requested.
  2. PQME cannot examine the applicant within 60-90 days.
  3. Applicant changed residence address since Panel issued and prior to the date of evaluation.
  4. PQME is a member of the same practice group of another member of the panel.
  5. PQME is not available.
  6. PQME who previously reported on the case is not available.
  7. PQME is the treating physician for the disputed injury.
  8. Parties agree to new Panel within region of applicant’s workplace, and original Panel was outside region.
  9. Medical documentation supports “good cause” for different specialty.
  10. Medical director, upon written request, may request either party to provide additional documentation or records to review to determine if specialty is medically appropriate.
  11. PQME did not send out an appointment notification.
  12. PQME issued a late report.
  13. PQME has a conflict of interest.
  14. Administrative Director issued an order for an additional PQME evaluation.
  15. PQME does not provide a complete medical evaluation, or PQME is not medically qualified to address disputed issues.
  16. Panel was issued more than 24 months ago, and no QME from that panel was used.

Common Reason for Delay – PQME Inability to Schedule within 60 Days

A very common reason for a replacement panel request is under Section 31.5(a)(2), when the PQME cannot schedule an evaluation within 60 days. Cases have been delayed many months and litigation costs have increased due to PQME’s inability to schedule within the appropriate time frame. In one particular case, four replacement panels were issued by the Medical Unit due to the PQME’s inability to schedule within 60 days. The time spent in trying to obtain an initial PQME pursuant to the current Panel process in place is over ten months and not yet concluded. The parties have been diligent in their efforts to obtain a PQME from the Medical Unit pursuant to the current PQME rules. It is still unknown when the injured worker will be scheduled to see an evaluator.

Can a WCJ Decide a Dispute Regarding the Failure of the Panel Process under the California constitutional mandate for worker’s compensation “to accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character” (Cal. Const. art.XIV.Sec.4)?

Under the California Constitution Article XIV, “The Legislature is hereby expressly vested with plenary power… to create and enforce a system of workers’ compensation… and jurisdiction in an administrative body… to determine any dispute… to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively and without encumbrance of any character.”

The Panel process is in clear violation of the expeditious mandate of the California Constitution. The workers’ compensation system has historically required WCJ’s and the WCAB to resolve disputes arising from the administration of various legislative reforms. The excessive delays are linked to the fact that Labor Code Section 4062.2 fails to establish timelines for completing the process to obtain a medical legal report. The language of the statute does not contemplate nearly one year or longer to obtain a medical legal report, and does nothing to prevent such a delay. Thus, Labor Code Section 4062.2 constantly violates the expeditious mandate in its execution. The administrative body WCJ is empowered to address such an issue and provide the appropriate remedy. The WCJ derives its authority from the California Constitution, the California Labor Code and California Code of Regulations.

Can the Parties who have been denied an Expeditious Panel Process under Labor Code 4062.2 be permitted to use the separate QME process from pre-2005?

Under the current Labor Code Section 4062.2 panel process, the applicant no longer has any freedom to select their own independent medical expert. The separate QME process in place pre-2005 worked well. There is no known authority to allow the parties to stipulate to obtaining their own separate QME’s, but there is authority under Labor Code Section 5701, that a WCJ can direct an applicant to be examined by a regular physician. Since Labor Code Section 4062.2, as administered by the Medical Unit, is shown to be plagued by excessive delays, it should be deemed in violation of the expeditious process owed to the California injured worker, and the Court should rule the parties to obtain their own QME’s under the pre-2005 system in place prior to the current PQME panel process.

How does having an Attorney Assist with the PQME Process?

The disputes are usurping the Board’s limited resources and causing significant delay in the cases. Very few in the workers’ compensation community would agree that the PQME rules have served their desired purpose. Whether it is the repeated and technical arguments the parties feel obligated to make to have the PQME thrown off the case, it might be time to admit the process is flawed.

There must be something done to simplify the process to obtain a credible and thorough medical legal report. It is debatable whether the solution is to return to the “battling QME” process that pre-dated the Senate Bill 899 in 2004 or reform the current process. It is clear however, that the current process for obtaining a medical-legal evaluation does not work.

The changes that occurred in SB 899 via Labor Code 4062.2 resulted in an ineffective, unwieldy and complicated process for obtaining medical legal evaluators. A significant amount of litigation continues to exist with selecting and obtaining a PQME. Even once the PQME is selected, the parties have to navigate how to schedule the evaluation, get information to the PQME, and communicate with the PQME. There are currently sixteen reasons to request a replacement panel. Consulting with legal counsel may help you avoid some common mistakes in the Panel process.

Contact Brand Peters PC to receive your free initial consultation today with an experienced workers’ compensation attorney.

How a Non-Severe Disability Impacts a Person’s Future Earning Capacity – Based on The U.S. Census

About 56.7 million people — 19 percent of the population — had a disability in 2010, according to a broad definition of disability, with more than half of them reporting the disability was severe, according to a comprehensive report on this population released in July 2012 by the U.S. Census Bureau. According to the report individuals without disabilities were roughly three times more likely to maintain employment than those with disabilities between 2008 and 2010. With 6 % or 9.4 million people that are disabled in the workforce, this disparity makes quite a difference. Individuals with disabilities, earn less than their able-bodied counterparts, making it necessary to calculate this deficit in an injury settlement.

People with disabilities often encounter barriers to their entry or re-entry into the workforce and lack of accommodations on the job; many have difficulty obtaining appropriate training, education and job skills. These, in turn, contribute to low-income levels, low labor force participation rates, and high levels of reliance on public benefits. Disabilities can be permanent or temporary, severe or non-severe. A severe or total disability means that you are completely disabled because of your injury or illness and can no longer work in the capacity for which you were trained. For workers’ compensation claims, a non-severe disability is more common. This type of disability makes up over 50% of these claims. This type of disability means that the worker is still able to function in his or her chosen work, but not at full capacity.

In terms of collecting disability payments or damage awards, there can be significant differences between a severe and non-severe disability. For a non-severe disability, the legal remedies usually include compensation for lost wages due to the injury. If a person has been made permanently unable to work due to the injury, then the lost wages that he or she would have made over the course of a lifetime may be required to be paid by the defendant.

Conventional wisdom would suggest that an individual with a non-severe injury who has returned to work, perhaps at the same or even greater compensation, has suffered no lifetime loss of earning capacity. This is a misperception. Census data reflects that it is necessary to also look at “lifetime compensation” for a non-severe disability which includes both earnings and work life expectancy as elements. Compensation should reflect the reduction in his or her future ability to earn, even if it hasn’t taken away that ability entirely.

If you’re injured or caused financial harm by the negligence of another party, you have the legal right to be “made whole”. Damages are the legal means of quantifying your losses. The type and extent of your injuries are one of the most important factors when it comes to determining the value of an injury case. A settlement in a non-severe injury case is compensation for the injured worker’s diminished earning capacity over the course of his life. He can still work, but he may not be able to do the same job he did prior to his injury. He may have to accept a job paying less money. Reduced earnings and reduced employment rates are a double whammy in calculating a loss of future earning capacity for a person with a non-severe injury. Having an injury attorney representing you can help ensure that your disability level is accurately calculated to maximize the compensation you may receive.

A Brief Discussion About the Qualified Medical Evaluator (QME) Process

If you have suffered a workplace-related illness or injury, and have submitted a claim under your employer’s workers’ compensation insurance policy, you may decide or be required to see a Qualified Medical Evaluator (“QME”). A QME, is a physician who is specially qualified to provide medical-legal evaluations of a worker’s job-related injuries. In this article, we explain what the purpose of a QME is, some details of the process, along with the pros and cons of requesting a QME and how that may affect your particular circumstances.

The purpose of a QME is to evaluate your workplace-related injury or illness when there is a question about what workers’ compensation benefits you should receive. The basic idea is that a QME can provide a neutral evaluation of your condition, and help resolve any dispute or disagreement between you and the workers’ compensation insurance carrier over whether, or how much, or for what conditions, you should receive benefits. QMEs are trained to evaluate a number of different injury situations. Some of the more difficult injuries to evaluate are injuries to the psyche. When a person is emotionally traumatized by an event such as sexual harassment, workplace violence, a workplace robbery, etc., the necessary compensation can be difficult to determine. A QME is a physician or other health care professional who meets certain qualifications set by the California Division of Workers Compensation (“DWC”) Medical Unit.

Who Decides If You Need to See a QME?

Either you or the workers’ compensation insurance claims administrator can request that you see a QME. But, you get the first crack. Here’s how it works. If there are questions about your workers’ compensation claim that a QME might be able to help sort out, you can fill out a QME request form obtained from the DWC Medical Unit website above. Alternatively, you may receive a QME request form directly from the workers’ compensation carrier, in which case you have ten days from receiving the form to request a QME. It’s up to you if you want to make the request. If you don’t make the request within the ten-day window, however, then your time is up and the workers’ compensation insurer gets the chance to request a QME.

Who Picks the QME?

Whoever fills out the QME request form decides the specialty of the QME you will see. As a practical matter, the specialty you or the claims administrator chooses for the QME ought to have something to do with your injury or illness, or with the reasons why there are questions about your claim. For example, if you suffered a twisting knee injury and there’s a question about how severe the injury was, you could request that the QME be an orthopedist.

It’s important to understand, however, that you don’t get to name your QME directly. Instead, if a QME is requested by either party, the DWC Medical Unit will send you a randomly generated list (or “panel”) of three approved QMEs in the requested specialty to choose from. You have ten days from when the list is generated to select one of the doctors on the QME list, tell the insurance company who you picked, and make an appointment. If you miss that deadline, the workers’ compensation insurance carrier has the right to select the QME you will see and make the appointment for you. If you are entering this process without qualified legal counsel, you may end up choosing a QME who will assess your injury in a way that offers you less compensation than you deserve.

Who Pays for a QME?

In California, the workers’ compensation insurance company pays for the QME exam, regardless of who requested it.

What Happens at a QME Examination?

A QME examination is basically a doctor’s appointment at which the doctor evaluates your workplace-related injury or illness, with an eye to helping resolve the dispute or question that led to the QME being appointed.

What Are the Pros and Cons of Requesting a QME?

A QME can be a convenient way to resolve a dispute or question about your eligibility for workers’ compensation benefits. For example, if you disagree with your regular doctor’s assessment of your injury or illness and how it affects whether you are entitled to benefits, a QME can offer a second, more useful opinion for resolving your claim.

But, beware, requesting a QME (or having one requested by the workers’ compensation insurance carrier) can carry significant risks. You may not be satisfied with the QME options presented to you in your “panel.” The specialty of the QME may affect how your injury or illness is perceived and judged, and may not be appropriate for establishing you are entitled to benefits. A qualified Workers’ Comp Attorney will help you choose an excellent doctor from a QME panel and fight for the payout you deserve.

How Does an Attorney Help With the QME Process?

Consulting with an attorney may help you avoid some common, but serious, risks and mistakes in the workers’ compensation and QME process. If you have an attorney, your attorney and the claims administrator may agree on a doctor without going through the state system used to pick a QME. The doctor your attorney and the claims administrator agree on is called an agreed medical evaluator (AME). as an alternative to being forced to select a QME from a randomly generated list.

Contact an experienced workers’ comp attorney from Brand Peters PC for assistance in choosing a QME who will get you the compensation you deserve. ​​​​​ Call the firm today to receive your free initial consultation.

Deposition Pt.2: Getting Paid as An Expert Witness

The role experts play will vary from case to case. Expert witnesses are hired for their knowledge and have become an indispensable part of litigation. Therefore, you get paid for your time spent preparing and attending the deposition.

Sometimes an expert will serve solely as a consultant to the lawyer, and remain in the background, without his or her name ever being known to the other side. At other times an expert will be used in the pre-trial stages, perhaps to give an affidavit supporting an element of the case. In other cases, the expert may serve solely as a witness at trial. Sometimes an expert will play a combination of these roles.

A common issue among expert consultants is, “How do I make sure I get paid?” Determining who is responsible for expert witness fees can be a bit of a challenge. However, the code of civil procedure (CCP) offers much guidance on this matter and can assist legal practitioners in understanding the rules in California and apportioning the financial responsibility accordingly.

The party who requests the deposition is responsible for paying the expert’s fees in advance of the deposition, if possible. Otherwise, the fees should be provided at the deposition. The expert witness’s fees should not only involve the time on the witness stand, but the time spent evaluating matters, studying files or reviewing evidence, meeting with lawyers, coming to conclusions, and sitting around waiting to testify.

If an expert witness’s fees are not paid prior to the deposition, the expert and the non-deposing attorney have the option of canceling the deposition under CCP §2034.460(b). If you go forward, without the fee, make sure that the payment arrangement regarding what they’re going to pay you and when they’re going to pay is on the record. Most experts who testify are paid at rates comparable to the normal fees they earn. It is not all that unusual for the expert to be paid slightly more for appearing at trial, than doing ordinary office work.

The most important step in getting paid is planning to get paid. Being compensated for your work is too important to leave to chance, hope or optimistic confidence in the decency of your clients. It’s business. Reviewing an entire case and then sending an attorney a large bill without having come to an agreement on the scope and cost of your work will cause a problematic situation, as you and the attorney most likely have different expectations. The video included in this blog post presents best practices that will help you get the fee you deserve.

Depositions Pt. 1: Preparing for And Testifying

The discovery depositions of an expert witness will play an important role in the litigation process because of the huge impact it has both in trial and of course and on the overall outcome of the case. Expert witness testimony is a crucial part of litigation strategy that can mean the difference between a successful case and one that results in disappointment. The most important role of an expert is to endorse and lend credibility to the concerns of the party that called the expert at trial. If you plan to serve as an expert witness retained for trial or testify as a treating physician or would like to simply better prepare yourself for a deposition or trial, you will find this and the remaining videos in the series very useful.

This is the first video blog in a series designed to inform the chiropractic physician about his or her role in the legal system and how to be better prepared for the sometimes-unfamiliar trial process. The series will provide an overview of the dos and don’ts around expert chiropractic testimony, tell you how to prepare for testimony and give you an idea as to what subjects you may testify on in court. The presenter in the videos is Jonathan Brand who has nearly thirty years of trial experience, including the use of chiropractors as expert witnesses. With his background as a highly qualified trial attorney, he can share the nuances of vetting and preparing witnesses

Depositions are opportunities to secure sworn testimony to be used at trial. Since there are specific rules that govern depositions of witnesses and further the deposition of experts, it is important to be familiar with these rules. Preparation is the key to a successful deposition, for both the witness and the attorneys. Expert witnesses who excel at deposition will earn repeat and word-of-mouth business and see gains in their practice.

The single most important piece of advice for the expert witness is to tell the truth, simply and directly. This cannot be overemphasized. As an expert witness, you have a legal, moral, and ethical obligation to tell the truth. You are testifying under oath. Nothing ruins a case faster than exaggerating, misrepresenting, or otherwise telling an untruth. Giving false testimony, is not only a crime but it will destroy your reputation as a reliable expert

Equally as important, is that you understand the question before answering is emphasized and repeated. The witness cannot be afraid to say that he doesn’t understand the question, you are not expected to know the answer to every question. If you are not sure of the answer, you should not guess nor assume the facts. If the matter is beyond your memory or personal knowledge, “I don’t know,” or “I do not remember” are perfectly appropriate responses to any question at a deposition. If a question pertains to an existing document, don’t be afraid to ask to review that document. A witness can review referenced documents before giving an answer during a deposition. The document may help to refresh your memory.

Documenting Your Injuries

How Documentation Helps Your Case

Documenting your injuries can, in the long run, increase the value of your case. Treatment for even the most minor injury can generate an intimidating amount of paperwork. Insurance questionnaires, medical bills, explanation of benefit letters and various other administrative documents are generated upon any hospital visit. To make things easier, create a file and save a copy of all these documents. Keeping an ongoing record of your treatment serves two purposes. First, it creates a narrative of your injury and subsequent treatment. Second, it tracks any expenditures associated with your medical treatment. Since medical expenses are reimbursable as economic damages, keeping accurate treatment records and billing records will allow you to claim every dime you are owed. There is no substitute for good documentation. Memory alone cannot do it.

Keep A Daily Record

A personal injury claims diary is a great way to record your pain levels, what kind of medicine you took, medical appointments, physical limitations and your ability to perform daily activities are all significant details. Keeping a diary also allows you to document any mental issues you may be having. Treating physicians and injured parties alike often ignore stress, sleepless nights, confusion and other outward manifestations of mental trauma. If you focus on keeping a record of your overall condition, these seemingly innocuous manifestations of mental trauma could lead to an actual medical diagnosis, which will bolster any claim for damages you make, including one for pain and suffering stemming from your injuries

With thorough and accurate medical records, documentation and a personal injury claim diary, a person will have made the foundation for a sound presentation of their pain and suffering. These records assess and document the nature and extent of your injuries; your treatment for those injuries; your progress and recovery; your complaints of pain, discomfort and limitations; any ongoing or permanent health problems; and the effect that the injuries have had on your life. This documentation will help your attorney prove how serious, severe and/or debilitating the injuries have been for you.

Seek Medical Attention Immediately

Although the aftermath of a serious accident can be disorienting, it is extremely important to take steps to document your injuries to help win your case. Another important factor in documentation is to obtain official documentation of your physical condition immediately after you are injured. Your condition immediately post-injury will serve as a baseline for your condition as your case proceeds. Without immediately obtaining medical attention, you will have no concrete way of proving your condition contemporaneously with the accident. Depending on the type of accident and your ability to take photographs at the time of an accident can be one of the best ways to document evidence. Take pictures of your own injuries, the damage to the vehicles (if it is a car accident), including the surroundings where the accident took place.

Documentation Is Essential To Success

It is important to provide your attorney with all relevant documentation throughout your case, and it is essential to update your lawyer each time you visit the doctor or receive any information from your insurance company. Documenting your medical condition is an essential part of any successful personal injury claim. Whether you are negotiating a settlement with an insurance adjuster or presenting a lawsuit to a jury, the more facts you have supporting your position, the higher the likelihood of a satisfactory outcome. Plan to share everything you have with your attorney, who can go through these materials to determine which documents will be the most helpful in winning your case. Following the few simple steps described in this article can help ensure that your injuries are properly documented, and you receive the compensation you deserve.

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