QME Psychiatrist with 2 Different IC Issues (California)

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QME Psychiatrist with 2 Different IC Issues (California)

Postby psychqme on Fri Mar 04, 2011 7:01 pm

Hi WC community,

I am new to this forum and appreciate any input or advice you can give me. I am a board certified psychiatrist based out of LA and have been doing QME evals in Southern California for 1 year. These two issues have come up over the past week and I am stumped as to how to deal with them.

1) One of my panel QME reports was sent late. The proof of service was written 31 days after the eval and the report postmarked 32 days after the eval. The adjuster received the report and a month later issued a letter saying that since the report was late she isn't going to pay anything. Can I still get paid on this somehow?

2) I saw an applicant three weeks ago for a panel QME. Before the evaluation, the defense sent me medical records but not a cover letter authorizing the evaluation. The defense claimed that the applicant attorney wasn't signing the proposed joint cover letter and therefore they were not furnishing any cover letter. We requested a unilateral letter and they refused to provide one. At first I threatened to not see the applicant without a cover letter and sent a letter to this affect to both parties. The defense attorney's staff went ballistic over this and claimed it was illegal and reassured us that they would send a cover letter after they received the report. I went ahead and saw the applicant and then wrote a letter to both parties indicating that the applicant was seen but no report will be issued without a cover letter. At this point the adjuster agreed to send a cover letter but never did. After weeks of my staff calling the adjuster and defense, they finally changed their tone from "we'll get you a cover letter tomorrow" to "the evaluation isn't authorized." Do I have recourse to get paid for the report and eval?

I would appreciate any advice you smart folks have for me! Please respond on the board as I do not use the email account I have in my profile for this forum. Thanks all!
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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby jobmdpsych on Fri Mar 04, 2011 7:50 pm

I think there's nothing you can do on the first one. Thirty days is hard and fast. In the future set a 20 day internal due date for editing and transcription so you'll always make the deadline. I do an audit every two weeks just to make sure everything is coming out of the pipeline on time. Fire any outside transcriptionist who can't turn a report around in seven-ten days, because that will bite you someday.

On the second one, don't hold the report hostage, just put in a paragraph at the beginning explaining you didn't get the CL and lay it on them.

In the future what you can do if they can't agree to a joint letter is ask them to each fax their version for consideration. Unless the attorney is a fool they will jump on this for fear of you only getting the other side's biased letter.

Just my 2 cents as a psychiatric QME not an attorney.

I've been doing this for 22 years. If you'd like some help dealing with these issues, give me your email so we can talk.
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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby jonbrissman on Sat Mar 05, 2011 1:12 pm

There are several cases which held that no party may object to an untimely QME report after it had been served. See, for instances, Charkchyan v. WCAB (2010), 75 CCC 1183 (writ denied); Sedgwick CMS v. W.C.A.B., (Gray-Sterne) (2009), 74 CCC 913 (writ denied); and County of Sonoma v. WCAB (Smith) (2008) 73 CCC 268 (writ denied). There are other older cases saying the same thing. Basically, if a party reads a report and doesn't like it, too bad -- unless it had objected on the basis of timeliness prior to receipt, the report is admissible and compensable.

File a lien and send a demand letter to defendant citing the cases listed above. If that doesn't get you paid, and if the underlying case has resolved, file a Declaration of Readiness to Proceed and a judge will order payment.

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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby stewshe on Sat Mar 05, 2011 7:02 pm

jonbriss,

I agree with 99% of your posts, but here the proof of service was 1 day late and the postmark was the following day. If it had been mailed on the 30th day inside California there would be 5 days allowed for receipt of service by mail. (I am assuming there is no duty on the part of a defendant to object to a report wile it is still possible for that report to be "timely.")

It is perfectly possible the defendant here still received and date stamped the report within the 5 days allowed for service if the report had been mailed on the 30th day. Thus, a defendant should not be expected to object until the 36th day at the earliest? Otherwise, they will be objecting needlessly to many timely served reports.

However, the adjuster waited a month to object. That suggests to me the adjuster read the report, did a memo to a supervisor who did a memo back and THEN an objection was made after they decided they didn't like the report!

I'd argue that is the reason the bill should be paid, i.e., the objection was unreasonably "late." If they were going to object because of "lateness" of reporting, that should be done within 6 - 10 days or so from the 30 days? I'm not aware of any cases on this exact issue.

Also, suppose the 30th day fell on a Saturday? According to the Code of Civil Procedure, Section 12, holidays, including Saturdays, are not counted when the last day to "perform an act" falls upon one. The proof of service was executed on the following day, a Sunday perhaps? Thus, Monday, the day of the postmark, would actually be the 30th day, so the report could have been timely? (FWIW, Civ.Pro. 12 is not in the L.C. book, but almost all codes and regs relevant to comp are.)

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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby jonbrissman on Sat Mar 05, 2011 7:48 pm

Stew: I don't think you disagreed with me. Nonetheless, the situation is covered by Regulation: 8, Cal. Code of Regs. § 31.5(a)(12) provides that a replacement QME panel will be issued when (1) the evaluator fails to meet the required deadlines, and (2) the party requesting the replacement objects on the grounds of lateness prior to the date the evaluator served the report. If a party requesting a replacement failed the second prong of the Regulation, no replacement will be approved and the untimely report stands. I might also note that some of the cases discussing L.C. Section 4062.5 say that a party must show that it was prejudiced by the untimely report, and that untimeliness without a showing of prejudice is insufficient cause for a replacement.

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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby jobmdpsych on Sat Mar 05, 2011 9:08 pm

Yeah, but now it's a no win situation for a young QME. He's going to pay whether he goes after the money or not.
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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby jpod on Tue Mar 08, 2011 3:35 pm

I agree the adjuster did not timely object and is barred from raising the issue after the fact.

But I wouild like to hear some discussion on whether this situation (QME sending report to parties) would ever involve adding 5 days for mailing when it comes to meeting a deadline for service.

It is my undertsanding the 5 days for mailing only applies in situations where the Court has sent something via US mail in which the Court ordered one party to serve the other with documents. That if the Court made said order personally (i.e. during a walk thru) there is no additional 5 days for mailing.

I really do not care what the rule is, I would just like to undersatnd when one can add 5 days and one can not.
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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby jakelast@aol.com on Tue Mar 08, 2011 4:20 pm

tHE 5 DAYS FOR MAILING IS ONLY FOR SITUATIONS WHERE THE SERVICE OF A DOCUMENT TRIGGERS A TIME FRAME TO RESPOND. WHEN AN ORDER OF THE WCAB IS SERVED, THE TIME TO FILE A PETITION FOR RECON IS TRIGGERED. MAILING ADDS 5 DAYS TO THE TIME.

FOR A QME THERE IS NOT A TIME FRAME (EXCEPT PERHAPS PAYMENT TO WHICH THE EXTENSION WOULD APPLY) TO OBJECT. THE TIME TO OBJECT IS AFTER 30 DAYS AND BEFORE THE REPORT IS RECIEVED. I AGREE WITH JON THE OBJECTION IN THIS CASE IS NOT VALID AND PAYMENT SHOULD BE EXPECTED.

AS FOR THE SECOND SITUATION, I BELIEVE THE DOCTOR SHOULD SIMPLY PROVIDE A REPORT BASED ON THE INFORMATION PROVIDED AND ADDRESS ALL ISSUES THAT CAN BE IDENTIFIED REGARDLESS OF THE COVER LETTER. IF THE PARTIES CANNOT AGREE ON A COVER LETTER, THEY DESERVE THE REPORT THEY GET. IF THE PARTIES HAVE A QUESTION AFTER THE REPORT ISSUES, EITHER SIDE CAN POSE IT TO THE DOCTOR AFTER THE REPORT SIMPLY BY COPYING THE OPPOSING PARTY. NO AN EFFICIENT WAY TO PROCEED BUT GIVE THE RULES THAT REQUIRE THE DOCTOR ISSUE A REPORT IN 30 DAYS, WAITING FOR EITHER RECORDS OR A COVER LETER TO GENERATE THE REPORT RISKS VIOLATING THE OBLIGATION TO GENERATE A REPORT IN 30 DAYS.
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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby stewshe on Wed Mar 09, 2011 7:45 am

Jake,

L.C. §4062.3(i) requires the medical evaluator to serve the EE and ER with the medical report
using an A.D.’s form, which is #122. A link to that form is:

http://www.dir.ca.gov/dwc/FORMS/QMEForms/QMEForm122.pdf

This requires the physician to make a declaration under penalty of perjury to serve with the
report.

I believe service of this report and the declaration required by the A.D. falls under Code of Civil
Procedure §1013(a) which covers service by mail:
<<
(a) In case of service by mail, the notice or other paper shall be deposited in a post office,
mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by
the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person
on whom it is to be served, at the office address as last given by that person on any document
filed in the cause and served on the party making service by mail; otherwise at that party's place
of residence. Service is complete at the time of the deposit, but any period of notice and any
right or duty to do any act or make any response within any period or on a date certain
after service of the document, which time period or date is prescribed by statute or rule of
court, shall be extended five calendar days, upon service by mail, if the place of address and
the place of mailing is within the State of California,
10 calendar days if either the place of
mailing or the place of address is outside the State of California but within the United States, and
20 calendar days if either the place of mailing or the place of address is outside the United States,
but the extension shall not apply to extend the time for filing notice of intention to move for new
trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of
appeal. This extension applies in the absence of a specific exception provided for by this section
or other statute or rule of court.
>> (bold added for emphasis)

If this does not apply to service by a QME on the EE and ER I would certainly appreciate
learning why it does not.

Stew
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Re: QME Psychiatrist with 2 Different IC Issues (California)

Postby ymcgavin@socal.rr.com on Wed Mar 09, 2011 8:08 am

Hi Psychqme,

Putting aside the evidentiary and admissibility issues, the thirty (30) day time frame for the QME to issue his/her initial report is a bright-line, absent the QME requesting an extension of time by properly serving a Form 112 on the Medical Director, the employee, and the claims administrator, at least five days before the report is due. (See Rule 38(c))

Form 112: http://www.dir.ca.gov/dwc/FORMS/QMEForm ... 112%20.pdf

If the QME fails to timely submit a report three times within one calendar year, the Medical Unit can choose not to reappoint the QME. (See Rule 51)

Rule 51:
§ 51. Reappointment: Failure to Comply with Time Frames.
All QMEs shall comply with the time frames in sections 34 and 38 as a condition for reappointment. The Administrative Director may deny reappointment to any QME who has failed to comply with the evaluation time frames in sections 34 and 38 on at least three occasions during the calendar year.

I am of the mindset that as long as the QME issues his/her report within the mandated 30-day time frame, the issue of allowing an additional five days for mailing is a non-issue.

There appears to be an internally inconsistent conflict between Rule 31.5(a)(12), and the last sentence of Rule 38(a):

Rule 31.5(a) states, "A replacement QME to a panel, or at the discretion of the Medical Director a replacement of an entire panel of QMEs, shall be selected at random by the Medical Director and provided upon request whenever any of the following occurs:

(12): "The evaluator failed to meet the deadlines specified in Labor Code section 4062.5 and section 38 (Medical Evaluation Time Frames) of Title 8 of the California Code of Regulations and the party requesting the replacement objected to the report on the grounds of lateness prior to the date the evaluator served the report. A party requesting a replacement on this ground shall attach to the request for a replacement a copy of the party's objection to the untimely report."

The last sentence in Rule 38(a) states, "Neither the employee nor the employer shall have any liability for payment for the medical evaluation which was not completed within the timeframes required under this section unless the employee and the employer each waive the right to a new evaluation and elect to accept the original evaluation, in writing or by signing and returning to the Medical Director either QME Form 113 (Notice of Denial of Request For Time Extension) or QME Form 116 (Notice of Late QME/AME Report – No Extension Requested) (See, 8 Cal. Code Regs. §§ 113 and 116)." (emphasis added)

(Interestingly enough, I perused the DWC Forms website --- http://www.dir.ca.gov/dwc/forms.html --- and could not find any copies of QME Form 113 or 116.)

The unanswered question I see is whether it is required that either of the parties timely object to the untimely report, prior to receipt of the report, as required by Rule 31.5, or whether there is any financial liability for the untimely report due to the last sentence in Rule 38(a), absent agreement in writing by both employee and employer.

The answer to this internally inconsistent conflict between Rule 31.5(a)(12), and Rule 38(a), may be a judicially resolved in the future.

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