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The days of quick QME selection are fast approaching.

Today the DWC announced that the Office of Administrative Law has approved revisions to QME regulations which are effective September 1. 2015.

According to the DWC newsline:

“The new QME regulations establish a mandatory online QME panel request process for claims where the injured worker is represented by an attorney. A party making such a request through the DWC website will immediately be issued a QME panel ready for service on all parties. In addition, the approved regulations simplify the QME Form 105 for unrepresented injured workers, which must still be mailed to the DWC Medical Unit for processing, and make minor changes to the QME appointment form, the reappointment form, and the QME unavailability form.

In order to transition to the online request process, initial represented panel requests postmarked after September 3, 2015 will not be accepted or processed by the Medical Unit. Requests received after that date will not receive any response. Effective October 1, 2015, all represented initial panel requests must be submitted online at the DWC website. Additional information regarding the online panel process, including FAQs and a training video, is available on the DWC website.”

The online panel process applies to requests for an initial QME panel in represented cases for all cases with a date of injury on or after 1/1/2005.

The revised QME regs were adopted after a rule making process starting in May 2015 with a 45 day public comment period and a May 22 public hearing whose transcript can be found here:

http://www.dir.ca.gov/dwc/DWCPropRegs/QME-Regulations/Transcript.pdf

The majority of comments at the May 22 hearing had to do with the DWC’s plan to eliminate the QME specialty of neuropsychology. Other commenters had concerns about the workings of the online panel process. Specifically, there were concerns about the computation of days to strike a QME, how simultaneous requests would be handled, and what documentation if any would need to be submitted along with requests.

On June 20th, 2015 the DWC posted revised regs for a 15 day comment period. Here is the “comment chart” summarizing public comments and the DWC response, which rejected some objections but agreed with other objections:

http://www.dir.ca.gov/dwc/DWCPropRegs/QME-Regulations/FinalRegulations/CommentCharts/15Day-CommentChart.pdf

Here is the final version of the new QME regs:

http://www.dir.ca.gov/dwc/DWCPropRegs/QME-Regulations/FinalRegulations/Final-Regulations.pdf

So, several years after announcing that they would migrate to an online process for represented workers, the DWC is about to go live on 10/1/15.

For years delays in processing and issuing panels at the Medical Unit has plagued the California comp system. This was a problem under several governors and various administrative directors, frustrating claimants, lawyers and employers who wanted to move cases forward. At various times blame was placed on staffing, technology (or lack of it), bureaucratic malaise, and poor leadership.Some blame was cast on stakeholders as to how to correctly fill out various request forms and documentation.

What are some takeaways on the new regs? Here are a few predictions:

Agreed Medical Examiner (AME) use will probably go down as stakeholders may find it easier to just get a panel quicky through the online PQME process.

The issue surrounding termination of the neuropsychology QME specialty will be decided by Governor Brown. It appears the legislature will pass AB 1542, restoring the neuropsychology specialty. But with leadership at the DIR/DWC in opposition, it is unlikely that the Governor will sign AB 1542. Brown would seem likely to defer to his own bureaucrats unless he decides that in the larger political calculus it is not worthwhile to disappoint legislators on this one.

The regs will likely solve the sort of paperwork-caused glitches that plagued the old system. For example, the online form has prompts to scan and upload certain required supporting documentation. Information that is required will be in fields and parties will apparently no longer get requests rejected because they failed to complete fields on a paper form.

There may still be disputes about time and compliance issues. The regs require that the party receiving the  panel “print and serve a paper copy of the online request, the panel list, and a copy of any supporting documentation that was submitted online, upon the opposing party with a proof of service within 1 (one) working day after generating the QME panel list. Within 10 (ten) days of service of the panel, each party may strike one name from the panel.” Disputes regarding the validity of panel requests are to be resolved by a workers’ comp judge. The effect of non-compliance with proof of service or service of documentation is not clear.

Disputes over the appropriate specialty will still exist. The regs specifically note that such disputes shall be resolved under section 31.5(a)(10). Such disputes may wind up in the lap of a WCJ.

-On their face, the revised rules do not apply to requests for a second QME or replacement panels.

The “race” may still be on. Some parties try to “win the race” by being the first to exercise the choice among 3 PQME names. That will still occur.

The “mailbox rule” may still apply to strikes. Code of Civil Procedure section 1013 (a) provides for a five calendar day extension after service of documents, so this rule (which was the underpinning of the Messele en banc decision) would seem to apply to the strike process once a panel has been served on the non-receiving party.

As with any new technology interface, their will be a learning curve for stakeholders.

Overall, however, the transition appears to be promising.

Stay tuned.

Julius Young

www.workerscompzone.com

www.boxerlaw.com

 

 

Julius Young

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