Most important issues in California workers' comp cases are resolved by the QME process (QME is short for "qualified medical examiner").

This usually occurs when the insurance adjuster sends the worker a letter saying that the worker must request a QME panel from the state. Often, the adjuster says that they are "objecting" to a determination by the treating doctor on issues of medical treatment, temporary disability or permanent disability. The worker is sent a form to request the medical specialty (i.e. kind of doctor) of the QME. If the worker does not pick the specialty, the adjuster can do so. That is important, but the real fun starts when the list of three doctors from the state arrives.

Many workers choose a QME for dumb resaons:

- "the doctor's office was the closest to where I live" (what makes you think that doctor will be the most sympathetic to you?)
- "I picked the doctor who went to the most prestigious medical school" (do you believe that makes that doctor the most likely to be thorough?)
- "I picked the youngest (or the most experienced) doctor" (do you think that is an indicator of who will be most fair?)
- "I didn't know anything about any of the doctors, so I just picked one at random"(did you consider talking to an attorney or to your treating doctor about the pros and cons of the various choices?)
- "the adjuster (or nurse case manager) suggested one of the three names, so I went with that one" (do you really think that employees of the insurer are looking out for your best interests?)
- "I chose a doctor at random because I figure an attorney can send me to another QME if I don't like this one" (true under California law at one time, but not true now)

The bottom line: talk to an attorney BEFORE you pick a QME evaluating doctor from a panel of three. Due to the fast time lines for picking a specialty and picking the doctor once the panel is issued, you should act quickly. Otherwise, the adjuster can pick the specialty AND the particular doctor. That's bad news for you.

Julius Young
www.boxerlaw.com

California workers' comp regulations specify that QME examiners must spend "face time" with the worker being evaluated.

One of the most frequent complaints I hear is from workers who tell me that the QME spent almost no time examining or talking to them. Apparently, many QMEs are in a hurry to rush the injured worker out the door.

How is face time defined? It is defined as the time the injured worker is with the QME. This includes any time the doctor spends "taking a history" or notes on symptoms, as well as the actual physical exam itself. Time you spend taking lab tests or sitting in a waiting room filling out a questionnaire would not be included.

What are the MINIMUM face time requirements?

-for a musculoskeletal evaluation: 20 minutes
-for a cardiovascular evaluation: 30 minutes
-for a lung evaluation: 30 minutes
-for a psychiatric evaluation: 1 hour
-for other types of disorders: 30 minutes

Note: these are the specified minimums for uncomplicated cases. If it is a complicated case, the required time may in fact be longer.

If you are a worker going to a QME doctor, keep these minimums in mind. You do not have to put up with shoddy treatment by a QME. You can print out this blog page and take it with you to the exam. To print out the regulations (part of Title 8, California Code of Regulations Sections 49 through 49.9), click here:
http://www.dir.ca.gov/t8/ch1a4_5.html

Julius Young
www.boxerlaw.com

One of the hot current issues in California workers' comp law is how to "rate" injuries that occurred before before January 1, 2005. Are workers injured in 2004 under the old pre-Schwarzenegger rating system? Or are they covered under the new rating system which relies heavily on the American Medical Association guidelines for assessing impairment? Does it make any difference if the injury occurred before the enactment of the 2004 Schwarzenegger reform?

The California Workers' Compensation Appeals Board and the Court of Appeals are starting to deal with this issue. It's a critical issue for many workers, since in the vast majority of cases, ratings under the "old schedule" are significantly higher than ratings under the "new schedule." The issue largely revolves around the interpretation of Labor Code Section 4660(d).

So far - and be sure to note that all of this could change quickly depending on what courts do - the rules stand as follows:

The WCAB did not adopt the argument that all pre-2005 cases are covered under the "old schedule" (that was the argument in the Aldi case). This argument is still being made in at least one Court of Appeals case, and the results are currently unknown.

At least one Court of Appeals panel (the Echevarria case) has rejected the argument that a pre-1/1/05 doctor's prediction of permanent disability is enough to make the "old schedule" apply.

By a razor thin 4 to 3 vote, the California WCAB in January 2007 released 2 "en banc" decisions which stand for the following rules:

1. If there was a pre-January 1, 2005 "comprehensive report," the case is "old
schedule, even if the worker was not permanent and stationary before 1/1/05
(this is the case of Joseph Baglione vs. Hertz)
2. If there was any temporary disability paid before January 1, 2005, the "old
schedule" applies (this is the case of Josh Pendergrass vs. Duggan Plumbing)
Both of these decisions were rendered just before the retirement of Commissioner
Merle Rabine. Without Rabine, there would have been a 3-3 deadlock on these issues. Appeals in these cases (or other cases working their way through the system)
will set the final rules.

If you are an injured worker with a pre-1/1/05 injury, you should probably see an attorney to discuss these issues. The law is highly complex and may be changing any day now. In some cases, it may boil down to what kind of report the doctors wrote and what exact language the doctors used in any pre-1/1/05 reports. Don't expect the judge to sort this all out for you. Thousands of dollars could be at stake for you. See the disclaimer above before relying on any of this, since there could be other possible interpretations.

Julius Young
www.boxerlaw.com