The infamous QME template legislation, Assembly Bill 1293, has been signed into law but will not take effect immediately.

Donald R. Barthel

In fact, the thus far unseen templates and their accompanying regulations have until Jan. 1, 2027, to be effectuated. Before then, the Division of Workers' Compensation will design the proposed QME template forms and request public comments.

The stated goal of this legislation is to reduce litigation by standardizing how QME reports are requested and written. However, there are specific legal limitations built into the text (Labor Code § 4062.4) that affect how well it will work for attorneys and doctors:

• Standardized report. The DWC must create a template that includes all statutory requirements for a report to constitute “substantial evidence.” This aims to stop reports from being thrown out due to technical formatting errors.
• Standardized request form. The legislation mandates a new form for requesting a qualified medical evaluator's evaluation, aiming to reduce disputes over what information is sent to the doctor.
• “Safe harbor” limitation. Just because a doctor uses the template does not constitute prima facie evidence that the report is compliant. A workers’ compensation judge can still find a report defective if the actual content is lacking, even if the correct template boxes are checked.

Despite passing with near-unanimous support, AB 1293 has faced skepticism from stakeholders. The primary criticism from the medical community is that mandatory templates force complex medical analysis into rigid checkboxes.

While it is true that a template might oversimplify a complicated injury, there is nothing in the legislation precluding a doctor from providing additional information that she believes is vital to a full understanding of the injury.

(Author’s note: There is nothing at this time precluding a QME from adding information he believes is vital to a complete understanding of relevant issues, but I am certain I have a great deal of company with the fact that I regularly receive incomplete reports. There are some folks in the industry who believe some doctors “accidentally” overlook addressing one/two/three/four issues so that a supplemental report or deposition will be necessary.)

Attorneys on both sides of the aisle have expressed concern that a standardized template would allow inattentive or poorly trained doctors to produce bulletproof reports without doing the necessary hard work.

If a doctor succinctly fills out the government-approved form (coloring well within the lines) but fails to put any substantial analysis into the report, a WCJ might feel pressured to accept it, even if the medical logic is flawed.

This is why Labor Code § 4062.4(a)(2) was added. It explicitly states that using the template is not prima facie evidence that the report is compliant. This was a direct concession to critics who feared the template would immunize bad reports from cross-examination.

Good lawyering, however, is a better antidote, and it need not be legislated. A talented attorney knows she can prop up a medical-legal report that is otherwise failing or render as not substantial evidence a report that is not to that attorney’s liking.

It takes no more than research, experience and self-confidence to so impact a med-legal report via deposition cross-examination. However, this again undercuts the legislative and constitutional goals of a workers’ compensation system that achieves “substantial justice in all cases expeditiously, inexpensively and without encumbrance.”

Other criticisms

Industry watchdogs have also criticized the new law not for its intent, but for its reliance on the DWC to execute it. The DWC has a history of failing to meet legislative deadlines (e.g., utilization review data collection).

Critics argue that handing the DWC a mandate to design a complex medical-legal form by 2027 will likely result in delays, a poorly designed form and/or a lack of enforcement.

How bad a reputation does the DWC have in terms of timeliness?

The 2005 Permanent Disability Rating Schedule, created by SB 899 in 2004, was the first to use the AMA guides. However, SB 899 also contained a provision (Labor Code § 4660(c)) that technically required the administrative director to amend the schedule “at least once every five years.”

Despite this requirement, a major legislative overhaul didn’t force a new schedule until SB 863 in 2012.

And to the surprise of some and disappointment of others, the new and improved PDRS received only the most minor of modifications.

(Author’s note: To the best of my knowledge, this delay was never explained, though the AD was clearly aware of the lack of timeliness. At a speech by the AD in 2011, I raised my hand and asked, “When can we expect to see the updated PDRS that was due last year?” The answer, though succinct, was unhelpful. The director merely quipped, “I wish you hadn’t asked that,” and then looked to another member of the audience who might have an easier, less politically loaded question.)

On the bright side, the bill gives the DWC approximately 15 months (until Jan. 1, 2027) to conduct hearings, design the forms and publish regulations. I am not sure you can get odds from Vegas as to whether this “gap period” will be used effectively or whether tradition will reign and allow bureaucratic inaction to carry the day. The jury is out on this one.

QME criticisms

Some QMEs argue that learning and adhering to a new, rigid government format adds to the administrative friction that is already driving doctors out of the system. These are likely the same doctors who responded to SB 899 by insisting they would refuse to utilize the “unfair” AMA guides (fifth edition). Indeed, many continue to hold their breath and misapply the guides.

Our AMA guides file analysis and rating department has analyzed thousands of med-legal reports and observed that more than 80% of them misapply the guides, whether it be the result of mere oversight or a political agenda.

Either way, as with the aforementioned reports lacking substantial evidence, intransigent doctors — like most humans — can learn and grow, whether through a humbling deposition or two, the refusal of parties to utilize a doctor’s services, or being suspended from the system for a period of time sufficient to get their thinking cap on.

The system would be well-advised to create a program whereby incompetent and/or intransigent and/or untrustworthy physicians could be suspended from the QME ranks for increasing periods until their particular difficulties can be resolved.

Finally, there are other critics who claim to be concerned that the template will be clunky, redundant or incompatible with the electronic medical record software doctors currently use. Some believe this may lead to more QMEs resigning from the system, exacerbating the current shortage of evaluators.

While it certainly takes some ingenuity to develop such pointed critiques of a program that has not even begun, this particular brand of criticism appears closely related to those who resent being forced to comply with a new format.

Given their shared concern that doctors will head for exits, one must ask: Is that necessarily a bad result?

After all, “players” such as physicians who immediately object to a proposed modification to the med-legal system (even before step one is taken to begin to explore, let alone actually implement, such a change) would seem to be so unduly reactionary.

Is the current “as is” so perfect that change shouldn’t be considered?

In light of the lack of evidence that perfection has been reached, perhaps new blood not dedicated to the old system would help efforts to allow medical reporting to evolve.

To put it another way, focusing on currently erroneous methods of applying the AMA guides to rate permanent disability, should we not inquire about the wisdom of railing against changes that may result in the self-removal from the system of doctors who currently get it wrong over 80% of the time?

The muzzling of attorneys

One last shortcoming to what the Legislature has bestowed on us: a muzzle.

Amid lawmakers’ concerns that “advocacy letters” drafted by attorneys bias the doctor before the exam, we are told this must be corrected by the creation of a standardized medical evaluation request form. This is a uniform “cover letter” that both sides must use to communicate with the doctor, theoretically reducing bias and legal arguments.

Although this may seem wise at first blush, it leads to some obvious concerns. First, are we to believe that less information going to a doctor is a cure-all? (That’s not what I was taught in law school.)

Second, it discounts the alleged talents of the physicians who, one would suppose, are capable of separating the wheat from the chaff by considering and weighing the relative strengths of each party’s arguments.

Furthermore, it overlooks roles inherent in the system. Do we not want lawyers to present the facts and argue the law to the physicians who then provide medical insights?

Muzzling attorneys is never a good idea; few can withhold their natural inclination to fight the good (or bad) fight. Not going to let them test out their theories of fact and law via a relatively quick, effective and inexpensive exercise such as a letter? Get ready for the inevitable delays and expense of the physician’s deposition, exactly the type of thing AB 1293 hoped to ameliorate.

Donald R. Barthel is a founding partner of Bradford and Barthel and is based in the firm’s Sacramento office. This entry from Bradford & Barthel's blog appears with permission.