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Gill: Is it QMEs' Responsibility to Determine Whether Their Training Allows Evaluation?

  • State: California

We have all learned the importance of obtaining a qualified medical examiner in a desirable specialty before an applicant's attorney seeks a more liberal panel in chiropractic medicine or other less desirable specialty. However, occasionally, the applicant’s counsel is able to win the draw to the panel and obtain a chiropractic panel.

Jaskaran S. Gill

Jaskaran S. Gill

A crafty defense attorney could often succeed in convincing the medical director to issue a replacement panel on the basis that the chiropractic specialty was inappropriate — especially in a claim involving surgery and medications.

For a time, the medical director recognized that a chiropractor could not perform surgeries or prescribe medications, and found it inappropriate for the chiropractic QME to evaluate a claim involving surgeries or medication. In such a case, the medical director would review a request for a replacement panel along with the accompanying medical records and often state: “Review of medical records associated with the contested claim document the use of prescription medication that is outside the scope of practice of a chiropractor.”

This was often a straightforward method to replace the chiropractic panel with an orthopedic panel. Unfortunately, a series of recent Workers' Compensation Appeals Board panel decisions have made it much less likely to succeed on such a request. Now, the medical director typically responds to a claim that the chiropractic specialty is inappropriate due to surgeries and prescription medicines with: “It is the responsibility of the QME physician to decline any evaluation they are not adequately trained and competent to perform.”

For example, in Lemus v. Motel6/G6 Hospitality, 2019 Cal. Wrk. Comp. P.D. LEXIS 262, the applicant alleged two specific injury claims involving the spine, and the applicant’s attorney obtained two chiropractic QME panels. In that case, the defense requested that the medical director issue a replacement panel on the ground that the chiropractic specialty is inappropriate. The medical director issued a replacement specialty in the orthopedic/spine specialty. Next, the applicant’s attorney challenged the replacement panel, and the judge overruled the medical director’s decision.

A panel decision affirmed the ruling. On reconsideration, the WCAB panel recognized that a chiropractor could not perform surgery or prescribe medications. However, the opinion determined that this did not preclude a chiropractor from acting as a QME, since an applicant’s current treatment needs are not relevant to whether chiropractors are in a medically appropriate specialty and that nothing prevents a chiropractic QME from opining that evaluations or referrals for surgery or medications may be a necessary part of the applicant’s future medical care.

Similar decisions were reached in Taylor v. Merced County Sheriff's Department, 2019 Cal. Wrk. Comp. P.D. LEXIS 141 and Ramirez v. Jaguar Farm Labor Contracting, Inc. (2018) 84 CCC 56.

It now appears to be the medical director’s opinion that it is the responsibility of the QME physicians to decline any evaluation they are not adequately trained and competent to perform, which will make it much more difficult to replace a QME due to an inappropriate specialty.

To combat this increased difficulty, it may be beneficial to ask a chiropractic QME to specifically comment on whether he has the training and knowledge to evaluate the applicant’s recovery from surgery, medications and alleged injuries. It would also be beneficial to concurrently request a replacement panel based upon “good cause” (8 CCR 31.5a(9)) when requesting a replacement panel due to inappropriate specialty.

Jaskaran S. Gill is an Associate Attorney at the Bradford & Barthel Fresno Office. This entry from Bradford & Barthel's blog appears with permission.

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