Attorneys Generally Satisfied with New QME Process

"...he expects to see an increase in discovery litigation pertaining to panels issued through the new website. He said he anticipates that many of the problems that existed with the Medical Unit before will now move to the Workers' Compensation Appeals Board for adjudication."   Alan Gurvey

Workers' compensation attorneys say the online process for requesting qualified medical evaluator panels that went live Oct. 1 isn't perfect, but they're generally pleased with how it's working and the immediate turnaround in getting a list of doctors to determine an injured worker's eligibility for benefits.

"I went online, filled out the form and got a panel immediately," workers' compensation defense attorney Gregory Grinberg said. "It was great."

The electronic application process is intended to prevent the kinds of backlogs that in 2012 and for most of 2013 resulted in the Medical Unit taking an average of six months or longer to issue QME panels in represented cases. While the DWC cleared the backlog in October 2013 and has been issuing most panels within 30 days, the online application generates a panel immediately if all the information needed to process the request is provided.

The DWC said there was never a backlog in issuing panels in unrepresented cases. Requests for a QME in cases in which the attorney has not hired an attorney are still submitted by paper.

Attorneys filed 2,233 requests through the online portal the first day it went live, according to DWC spokesman Peter Melton. The high volume was largely the result of the fact that the DWC stopped processing paper applications postmarked after Sept. 3, he said. The DWC was prepared to process as many as 7,000 applications on the first day, he said, which is about the average number of QME requests it receives in a month.

Lawyers submitted 872 applications on Friday and 660 on Monday. In the first three days after the site went live, the Medical Unit received 3,815 total applications and issued 2,900 panels, Melton said. The remaining 915 applications were ineligible, he said.

A QME panel request could be rejected as a duplicate submission if opposing counsel already received a panel, or if it was filed too soon. Labor Code Section 4062.2 requires parties wait at least 10 days after the date of mailing a request for a medical evaluation, or 10 days after objecting to a medical determination made by the treating physician.

Grinberg said he expected the online portal to crash on the first day because anyone who wanted a panel since early September was going to be trying to access the site. It was a bit "choppy and slow loading," he said, but otherwise worked well.

One thing the DWC could do to improve its website is create a process so when an application is denied because the other party already requested a panel, the attorney who loses the race is informed of the specialty designation requested by the winning attorney.

Under the paper process, the Medical Unit informs the losing party by mail that a panel was already requested for a given specialty when it rejected a duplicate request. 

Grinberg said the website just provides a list of the names of the doctors on the panel. The party that receives the panel is required to serve the panel request form on all parties in the case, but sometimes things get lost in the mail or just aren't shared, he said. This could make it difficult if an attorney wants to challenge the appropriateness of the specialty designation.

He also said it might be possible to "game the system" by changing the date of injury to try to get the Medical Unit to issue a separate panel. Grinberg said he's not aware of anyone doing that – and he hopes no one would – but he is aware of cases where one party accidentally reported the wrong date of injury and a second panel was issued.

But overall, he said he's "very happy" with the new process and it has "sped things up quite a bit."

Applicants' attorney Alan Gurvey, managing partner of Rowen, Gurvey & Win, said he's talked to several other attorneys and that "we are finding a general satisfaction with the new system."

He, too, said there have been some "glitches," such as a panel request being incorrectly denied as premature and a panel being issued with doctors listed in the wrong location, given where the injured worker lives.

"But these glitches are not the norm and there may be a proper explanation for them," he said. "Otherwise, people seem to be getting the panels immediately and successfully."

At the same time, Gurvey said he expects to see an increase in discovery litigation pertaining to panels issued through the new website. He said he anticipates that many of the problems that existed with the Medical Unit before will now move to the Workers' Compensation Appeals Board for adjudication.

"That is, litigation over medical specialty, over need for additional panels, over replacement panels and over doctors' availability will suck up a lot of time for attorneys and judges, ultimately causing undue delays for the injured workers," he said. "It can only be hoped that the parties understand that the system, for better or worse, allows for PQMEs in all of the designated specialties, and that it is part of the process of moving a case to resolution or trial, and therefore, not simply try to delay cases by litigating these issues, where inevitably the panels, under most circumstances, will be validated by the (workers' compensation judges)."

Diane Worley, director of policy implementation for the California Applicants' Attorneys Association, said the QME application website "crashed" for a short time on the first day, but was restored shortly after the DWC sent out a notice that it was rebooting its server. She said she's not aware of the system going down since then. 

She said several CAAA members had problems with requests being denied on the grounds that they were submitted too soon. In one, the letter requesting a comprehensive exam was sent 17 days before the attorney requested a panel. In another case, the panel request was denied three times despite the fact that letters were sent 16, 17 and 19 days before the application was submitted.

"The system keep saying the request is early," Worley said. "We can't figure out how to count the way the Medical Unit wants us to count. It would be nice if the rejection notice gave some indication of how they're calculating dates, or told you on what date you can actually request a panel."

Worley said another CAAA member, after requesting and receiving a panel through the website, received an email from the defense attorney on the case who also received a panel. The online system was supposed to reject the later request by the defense attorney but the attorneys will now have to go to before the WCAB to sort it out, she said.

And she said one CAAA member had a denied death claim for which there was no disputed medical report. 

A person using the online request form has to identify the date of the report being objected to for the application to be considered complete. And the system is set up to reject incomplete submissions.

"It appears to have had several pretty big blunders so far," Worley said. "We hope it gets better. All in all, the system is much faster, and once they work the kinks out, it should be much quicker than the prior mail-in process."

Published on 10/08/2015 by WorkCompCentral, authored by Greg Jones