A California Division of Workers’ Compensation public comment forum regarding proposed amendments to QME regulations recently closed.
Amendments proposed by the DWC would make changes in the eligibility requirements for initial qualified medical evaluator appointments and in the criteria for reappointment, alter some QME education requirements, and tweak some provisions on denial of QME reappointment or appointment.
Typically, the DWC conducts a forum and then moves on to formal rulemaking, often amending its proposals based on forum comments. So comments can seed changes in the ultimate DWC proposal.
Good and bad ideas surfaced in the stakeholder comments lodged during the forum. Let’s look at some of those comments and grade them.
The California Coalition on Workers’ Compensation recommends that the DWC develop a scheduling program that will display the availability of QMEs.
- Good idea. Why? This may help the parties in their selection of QMEs and would enable policymakers to get a better handle on the actual availability of a wide number of QMEs.
CCWC recommends adding an attestation of completion of anti-implicit bias coursework for QMEs seeking reappointment.
- Good idea. Implicit bias can be a problem, and encouraging QMEs to be sensitive to all groups is a worthwhile goal.
CCWC recommends that as part of quality controls, all QME reports be produced within one week of the evaluation.
- Bad idea. Why? While prompt reporting may promote quality reporting in some instances, a one-week deadline would be unreasonable. In many cases, particularly ones involving voluminous records, medical research or other complicated circumstances, doctors would not meet such a deadline. Moreover, many reports are sent out for transcription and editing, and the logistics of this one-week deadline would not be practical.
CCWC recommends that the format of a cover letter should be standardized and that a set order should be adopted for all of the issues to be addressed.
- Bad idea at this time. Why? This suggestion should be debated by stakeholders, particularly the QME community and the applicant and defense bar to determine advantages and disadvantages. I would not necessarily be opposed to mandating that cover letters address certain issues or to requiring that the cover letter clarify authorization to the QME to perform or coordinate testing. But standardizing all of the cover letter issues into a set format seems like overkill.
CCWC recommends that complaint forms about QMEs be revamped to become a feedback form. They propose that the feedback form be sent to the QME within 10 days “in order to provide accurate and timely feedback to the QME on the quality of their report.”
- Bad idea. Why? Use of such a form could easily lead to intimidation of doctors by parties who are unhappy with the medical findings and opinions of the doctors. Feedback wars between the parties might result. Parties who are concerned about report accuracy and quality are free to seek supplemental reports or set doctor depositions. Adoption and use of a “feedback form” could be poisonous for the system. However, I do support requiring that the judge send the QME any findings and awards that specifically reject the QME’s opinion on the basis that the report lacked substantial evidence or was based on a misunderstanding of the applicable law. This would be helpful to QMEs, who usually aren’t aware of how their report is seen by the workers’ comp judges. WCJs should have the option to send untimely or substandard reports to the Medical Unit so that it can track reporting problems.
CCWC suggests that all recently appointed QMEs have their initial five reports reviewed by the DWC for feedback on report quality.
- Good idea, at least in theory. Why? Getting some feedback early may be helpful to the QMEs. But the criteria for feedback needs to be discussed among stakeholders. And what DWC staff is available to do that feedback, and what is its training?
CCWC also suggests more clarity should be provided on the requirement that a QME seeking reappointment submit the two most recent MMI reports.
- Good idea to require more clarity in the regs on this. Why? As CCWC suggests, it is not clear what happens with those reports.
CCWC also suggests, “If there have been questions concerning quality or timeliness of evaluations, there should be a higher standard for review and reappointment.”
- Bad idea, unless and until the DWC develops fair and transparent criteria for evaluating report quality and adopts standards that provide due process for QMEs. While the DWC may in time be able to develop more data on report quality that would help develop more objective standards, this is currently a very heavy lift.
CCWC proposes that the DWC consider using an analytics tool to determine outliers whose reports do not provide quality or consistency.
- Bad idea unless and until a study of such analytics tools is undertaken to determine efficacy and potential bias. Why? While advances in machine learning/artificial intelligence may hold some promise in flagging cases where there are major mistakes, inconsistencies and redundancies, misapplication of the AMA Guides, etc., the use of these sorts of tools should be first studied by CHSWC or a DWC-contracted think tank.
CCWC recommends that aggregators/QME management companies be required to share their quality assurance programs with the DWC.
- Intriguing idea, though this may involve proprietary information. In any event, greater transparency about the role that QME management companies play in the creation of QME reports is a reasonable goal.
CCWC suggests that there be an easy expedited process for a QME to request authorization if additional diagnostics are required to fully address impairment.
- Good idea. Why? Too often, lack of diagnostics slows case resolution, as QMEs lack data required under the AMA Guides or diagnostics necessary to determine a diagnosis or opinion on causation, need for treatment, etc.
Dr. Gabor Vari suggests that electronic service of reports be allowed unconditionally, not as an opt-in.
- Good idea. Why? It is 2021. Only outliers are not equipped to handle electronic documents. They should not dictate the policy.
The California Workers’ Compensation Institute (CWCI) recommends that QME first-time applicants be granted a two-year provisional status. During those two years, the Medical Unit would review every report for content and quality.
- Bad idea. Why? Substantial personnel costs would have to be added to the DWC budget to manage this level of supervision. Moreover, this would likely dissuade many would-be QMEs from getting involved in the system. At a time when there is concern about the dwindling number of QMEs, this would be counterproductive. Other methods to buttress report quality should be used. Further, until more data on report quality is gathered, there is not necessarily a consensus on the criteria to judge report quality.
CWCI urges the DWC to increase the minimum course requirement to 30 hours (instead of increasing it by four hours, from 12 to 16 hours).
- Not a bad idea in theory, but too much for now. Why? The DWC is dealing with competing considerations. Report quality is important, but recruiting QMEs is critical. Creating high hurdles to QME appointments may make it impossible to recruit sufficient numbers of QMEs for the system to function. Incremental changes in trying requirements seem like the way to go for now. But the task force on report quality should weigh in on these matters before a regulation is promulgated.
CWCI suggests that language be added to provide that a QME’s fully booked schedule is justification for unavailability.
- Good idea, though the language to enable this concept would need to her hammered out.
Liberty Mutual Insurance proposes that 8 CCR 35 be modified so that limitations are placed on what records can be shown to the QMEs, with a mutual agreement or WCAB order being required for certain items to be sent to the QME. Liberty also proposes a 200-page cap on records that can be sent, unless there is a mutual agreement or WCAB order.
- Bad idea. Why? This proposal would create due process problems and would lead to extensive wrangling about cherry-picking medical reports and records for QME review. This would likely result in QME reports that fail to meet the substantial evidence standard.
The California Orthopaedic Association recommends holding off on changes in the topics and educational hours required of QMEs. It suggests that these changes be delayed until after the Medical-Legal Report Quality Task Force has made recommendations for improving report quality.
- Good idea. Why? Currently, there is no consensus on report quality issues and how to improve them. Changes can wait till after the task force gives its input.
COA suggests that the DWC eliminate any requirement for in-person lectures and instead allow all courses to be taken online.
- Good idea. Why? The pandemic has shown that most everything that was formerly done in person can now be done online. The in-person requirement serves no substantial purpose, and education providers can re-work their seminars to monitor participation online.
The DWC proposal and the forum comments are here. The DWC’s next step is unclear.
Julius Young is an applicants' attorney and a partner for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers Comp Zone blog on the firm's website.