From the it never hurts to toot your horn department of governmental affairs:

The DWC has issued a bulletin noting that they have finally cleared their backlog of QME panel requests. Between April and June 2010 they processed about 41% of the number of QME panels they processed in 2009.

You can do the math on the back of that envelope. In two months they have issued almost as many panels as in 6 months in 2009.

Seems the DWC Medical Unit (or, more likely, the higher-up powers that be) finally got the message.

There had been widespread dissatisfaction in the comp community about how the DWC Medical Unit was handling panels. Adjusters, defense attorneys, applicant attorneys, and judges all were unhappy with the slow pace of issuance of panels, particularly in represented worker cases.

Part of the problem was staffing. But a large part appears to have been the administrative philosophy. For several years the DWC Medical Unit had allowed a slew of technicalities to slow issuance of panels.

In some cases this frustrated parties who were simply seeking to move the ball down field.

While some of the delays were undoubtedly caused by ambiguities in requests or improperly filled out forms, parties found that attempts to clarify or provide supplemental information to the unit were often ignored.

Now the Medical Unit appears to be focusing on getting the panels out.
Parties who believe they have valid objections to the panels may need to seek relief from a judge at the WCAB.

Stay tuned.

Julius Young
www.boxerlaw.com

The DWC Medical Unit has been a great source of irritation in the comp community over the past few years.

Whether you speak to adjusters, defense attorneys, applicant attorneys or even judges, there has been a sense of frustration with the Medical Unit's delay in processing QME panel requests. I've heard many complaints about how items get hung up on technicalities. Correspondence to clarify or amend requests seem to fall into a black hole, never to be acknowledged.

Attorneys were increasingly forced to take up the time of judges at the WCAB seeking orders that the Medical Unit act. In a perverse twist, the Medical Unit disciplined some QMEs for failing to meet time frames (at a time when QMEs are dropping out of the system), yet completely failed to manage its affairs to get QME panels out in a timely fashion.

The QME rules were revised, but the problems remained.

Understaffed and backed up many, many months, the DWC Medical Unit has apparently decided to do less "screening" in an effort to get caught up.

New forms have been devised. Yesterday the following forms were unveiled:

Here's the new form "Additional panel request form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_7.pdf

Here's the new form "Replacement Panel Request Form":
http://www.dir.ca.gov/dwc/FORMS/QMEForm ... rm31_5.pdf

Stay tuned.

Julius Young
www.boxerlaw.com

Some interesting statistics surfaced in the presentation on the QME process at this week's DWC conference.

While the Medical Unit is getting QME panel requests issued in less than a month for unrepresented workers, panels in represented worker cases are currently not issued until around 90 days from request.

Labor Code 139.2(h)(1) requires unrepresented panel requests be issued within 15 business days of receipt by the DWC Medical Unit. For represented worker panels there is no statutory timeframe but the Medical Unit has previously indicated a goal of processing those within 30 working days.

Suzanne Honor-Vangerov, manager of the DWC's Medical Unit, gave a presentation on the workload of the Medical Unit. Each month 6,600 panel requests are filled. The breakdown is as follows:
Unrepresented cases: 4,700
Represented cases: 4,100
Ordered by judges: 100
Replacement panels: 550

Honor painted a picture of a unit besieged by a huge volume of paper
(the Medical Unit is not on EAMS) that is also coping with the effects of furloughs. Apparently some Medical Unit personnel have been off on Friday furloughs but come in on Saturdays. Eventually they'll have leave time as a result.

The boxes of backlogged requests may multiply.

The situation is complicated by procedures and forms which result in many requests being kicked back. That occurs for a variety of reasons where forms are not filled out properly, supporting documentation is not attached, there is a conflict between the data in the form and the underlying documentation etc etc. Ms. Honor and DWC Legal Unit staff counsel Suzanne Marria did an admirable job of detailing the types of errors that can delay processing of requests in represented and unrepresented cases.

It's hard to fault the DWC staff, who are trying to keep the QME system flowing. One does wonder if there aren't steps that could be made to streamline the process.

What was most disturbing was word that requests for panels for workers represented by attorneys is taking 90 days. And if the request is kicked back for clarification from one or both of the parties, the wait could be much longer.

Having such a processing time differential between represented and unrepresented cases is troubling.

Yes, if there are long delays it may encourage adjusters, defense attorneys and applicant attorneys to agree on AMEs.

There are many cases where it's in the interest of the insurance carrier to get a speedy resolution. If there are disputes over TTD status or over treatment issues, employers and insurers may be prejudiced by having to wait many months for a panel to be issued. In some cases a panel is issued and there are problems with one or more of the panel docs, necessitating a replacement panel.

So if there are delays in the QME process it may give more incentive to parties to use AMEs. With AMEs in a represented case the parties have more control over scheduling. If an AME is scheduling too far out in time the parties can agree to someone else. I suspect there are many adjusters and claims managers who would be more willing to consider use of an AME if they understood the delays at the Medical Unit.

The problem is in represented cases where the parties cannot or will not agree to an AME. A wait of 90 days-or more-to even get the QME process rolling is prejudicial to many workers and to many employers.

A 90 day wait-or more-is hardly a hallmark of an expeditious, unencumbered system.

Under these circumstances I believe that many attorneys will start getting orders from a workers comp judge directing the Medical Unit to issue a panel promptly. If the unit is too swamped to comply expeditiously (some of these orders may require Medical Unit compliance in a designated timeframe) judges may allow the defense attorney and applicant attorney to bypass the process altogether. Ultimately the WCAB has jurisdiction on what medical evidence it will allow, particularly if the parties stipulate to the admissibility of evidence.

Either the DWC needs to devote more staff resources to the unit or the
QME request procedures need to be revamped.

With the Schwarzenegger-appointed DWC administration headed towards its final hurrah, it's not clear this is a priority. But this DWC administration or the next needs to address these problems, which may only grow worse.

Julius Young
www.boxerlaw.com

Some things just seem destined to shuffle.

Madonna looks for a marriage that will stick.

The San Francisco Forty Niners look for a quarterback who can provide some offense and reclaim the glory days of Montana and Young.

The Federal Reserve and the Treasury look for the policy that will restore confidence in the banking system. Otherwise, millions will be eating dog and cat food in their old age.

And California's Division of Workers Compensation continues to revise and revise and revise its QME guidelines.

Here's a link to the newest version and the statement of reasons:
http://www.dir.ca.gov/dwc/DWCPropRegs/q ... ations.htm

The 15 day comment period ends on October 30.

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right column under "Most Recent Entries")

Doc, please hold that retrospectoscope.

One thing I like about being in doctor's offices to take depositions is seeing some of the tools of the trade. Modern medical technology is amazing.

If you'd like to see some really strange futuristic tools of the trade (satirical, actually), check out this site:
http://www.freakingnews.com/Medical-Ins ... s--500.asp

In the past there have been a number of medical devices that were either ineffective or fraudulent. There's actually a Museum of Questionable Medical Devices, now located at the Science Museum of Minnesota:
http://www.museumofquackery.com/devices/devindx.htm

Back to that retrospectoscope.

The retrospectoscope isn't like the Toftness Radiation detector, the MacGregor Rejuvenator, the Psychograph, the Micro-Dynameter, or the Relaxacisor. Actually, it's not a device.

It's more like a habit. A habit some QMES and AMES have when they write reports on injured workers.

In the typical retrospectoscope scenario, the QME or AME will be examining the worker long after the injury. The worker may still be off work on temporary disability, certified for TTD by his or her treating doctor. Or the worker may be back to work, having drawn TTD until the return to work date.

In this scenario, the QME or AME, seeing the worker downstream, undertakes to assign an earlier upstream P&S date or an earlier date at which TD should have stopped and the worker been released to work.

Using the retrospectoscope, the QME or AME may try to assign the retrospective P&S date based on what is felt to be a reasonable recuperation time for that particular type of injury. Or assign a retrospective date on some other factors, including the QME/AME's retrospective concerns about the patient's cooperation or doubts about the treating doctor's clinical judgement in certifying the worker as TTD during the period in question.

Never mind that the treating doctor kept the worker off work on TTD, sometimes even over the worker's objection. Never mind that the employer did not provide modified work consistent with work restrictions during the period. Never mind that the QME or AME did not see the worker during the period in question.

Often the QME or AME will offer these retrospective assessments even though the parties have not requested it. The QME/AME may just assume that the parties want such an assessment. Or the QME/AME may be inclined to micromanage the case.

The result: report comes out. Adjuster sends applicant a letter which says in essence: "you owe us money. Send us your check, you have been overpaid. You are P&S and we owe you nothing due to the TD overpayment".

Is this legal? No, according to Mark Borges vs. WCAB (Quality Terminals):
http://www.grayandprouty.com/articles/B ... v.WCAB.pdf

In Borges, the Court of Appeal rejected a WCAB finding that a worker was not entitled to TD benefits during a period when his treating doctor certified his TTD. The WCAB had based its finding on a defense QME report releasing the applicant to work. But there was a problem. The QME report was not signed and transmitted to the parties until months later. The court rejected an attempt to bar applicant from TD benefits based on a return to work assessment that was never transmitted to the worker.

Might there be times where the parties want the QME or AME to address retrospective TD issues? Sure. Perhaps there were earlier dueling QMEs and the parties actually want the AME to resolve a TD/P&S date issue.
And in some cases where there are disputes about separate periods of cumulative trauma, the parties may ask for P&S dates.

But docs..hold the retrospectroscope unless you're asked to use it.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS button on the lower right column under "Most Recent Entries")