For Injured Workers, the QME Evaluation Process can be nerve-racking. Injured Workers enter into the QME’s offices and often do not know what to expect.
- What should the offices look like?
- How will the QME talk to me?
- If I get frustrated or mad at the QME, what can happen?
- If I am on medications at the time of the exam and am having problems participating
- What will happen?
The State of California has issued various Regulations to address these issues. These Regulations are intended to protect the Injured Workers and ensure that they are respectfully treated and evaluated in an appropriate medical setting.
Likewise, there are some boundaries that are established with respect to QMEs and their rights to how they are to be treated by the Injured Worker or their Representative.
The Right to Be Seen for an Evaluation Whether Represented or Not
QMEs are not allowed to decline setting evaluations based upon the issue of representation. Regardless of whether an Injured Worker is represented or not, a QME must “[s]chedule all appointments for comprehensive medical-legal evaluations without regard to whether a worker is unrepresented or represented by an attorney. A QME shall not refuse to schedule an appointment with an injured worker solely because the worker is not represented by an attorney or because a promise to reimburse or reimbursement is not made prior to the evaluation.” Regulation Section 41(a)(2.)
The Right Not to Have the QME Continue or Cancel the Evaluation
The Department of Industrial Relations wants QME evaluations to be done in an expeditious fashion.
QMEs are advised to refrain from unilaterally rescheduling a panel QME examination more than two times in the same case Reg 41(a)(7.)
The DIR also advises QMEs to “[r]efrain from cancelling a QME examination less than six (6) business days from the date the exam is scheduled without good cause and without providing a new examination date within thirty (30) calendar days of the date of cancellation.” Reg 41(a)(8.)
The Right to Be Seen in a Clean and Professional Office
Regulations requires that a QME shall “[m]aintain a clean, professional physician’s office (as defined in section 1(y) at all times which shall contain functioning medical instruments and equipment appropriate to conducting the evaluation within the physician’s scope of practice and a functioning business office phone with the phone number listed with the Medical Director for that location which a party may use to schedule an examination or to handle other matters related to a comprehensive medical/legal evaluation” Regulation Section 41(a)(1)
Per the Regulations, a Physician’s Office “means a bona fide office facility which is identified by a street address and any other more specific designation such as a suite or room number and which contains the usual and customary equipment for the evaluation and treatment appropriate to the physician’s medical specialty or practice.” Regulation Section 1(y)
In sum, there should be a:
- Clean Professional OfficeFunctioning Medical Instruments and Equipment to Conduct the Evaluation
- An Office with a Street Address and a Suite or Room Number, if necessary
- Business Office Phone
The Right Not to Be Subject to QME Discrimination
This issue relates more specifically to the reporting of the QME. This Regulation can also dovetail with the regulation which addresses the requirement that QMEs address Injured Workers in a respectful courteous, and professional manner. (Note: This specific regulation is discussed further on in this article.)
Per the Regulations, a QME is not to “render expert opinions or conclusions without regard to an injured worker’s race, sex, national origin, religion or sexual preference.” Regulation 41(c)(3)
There was a recent case which addressed the impact of such discrimination. As a result, the remedy can be the issuance of a new panel with respect to the medical specialty.
In the case, the discrimination was noted that “[b]ased on her testimony, Dr. Hsia appears to have based her assessment of applicant’s physical condition on his ethnic or racial makeup. By her own words, Dr. Hsia presumed that applicant “ha[d] … Negro blood,” and based on that, she felt that his muscle definition, tone, and strength were abnormally low. The unavoidable implication here is that Dr. Hsia felt that these markers were abnormally low for a person with “Negro blood.” It was inappropriate for Dr. Hsia to draw medical conclusions based on comparing applicant’s muscle definition to the general population of individuals who share his ethnic or racial makeup; it indicates that Dr. Hsia relied on stereotypes regarding members of applicant’s ethnic or racial group in evaluating and diagnosing applicant.” Beecham vs. Swift 2017 Cal. Wrk. Comp. P.D. LEXIS 555 (Board Panel Decision)
The Right to Not Have to Wait: One Hour
Regulations prevent Injured Workers from waiting excessively in the QMEs offices for their evaluation.
Regulations require that “[n]o evaluator shall schedule appointments to the extent that any injured worker will be required to wait for more than one hour at the evaluator’s office prior to being seen for the previously agreed upon appointment time for an evaluation. An injured worker who is not seen by the evaluator within one hour may terminate the exam and request a replacement evaluator from the Administrative Director. No party shall be liable for the terminated exam.” See Regulation Section 41(f)
The Right Not to Be Subject to Improper Physical Contact
No evaluator shall engage in any physical contact with the injured worker which is unnecessary to complete the examination. Regulation 41(d)
The Right Not to Be Subject to Unnecessary Examinations or Procedures
QME are not allowed to “request the employee to submit to an unnecessary exam or procedure.” Regulation Section 41(a)(3)
An example of this would be a QME taking or ordering x-rays of the Injured Workers low back when the only claimed injury was to their right hand.
The Right to Not Have the QME Unilaterally Reschedule the Evaluation
The Regulations provide that a QME should “Refrain from unilaterally rescheduling a panel QME examination more than two times in the same case.” Regulation Section 41(a)(4)
The Right to Have Professional Conversations and Communications
Per the Regulations, QMEs are to communicate with the Injured Worker in a respectful, courteous and professional manner. Reg 41(a)(5)
An example of a violation of this regulation was in the case of Sikder vs. Luxor.
The facts of the case were as follows: “Mr. Sikder felt that the PQME was quite irritated at him in retaliation for a comment Mr. Sikder had made at the beginning of the session. Before the evaluation had begun, the injured worker had asked Dr. Carpenter why they were meeting at a podiatrist’s office and why Dr. Carpenter’s name was not on the door of office suite that the PQME was using to evaluate the injured worker. Apparently, those questions did not go over well with Dr. Carpenter and Mr. Sikder felt that the doctor was irritated at him from that point on. (See MOH, dated 8/19/2014 at the top of page 5.)
Throughout his testimony, Mr. Sikder was quite adamant that he was treated in a very unprofessional, discourteous and disrespectful manner by Dr. Carpenter, during the examination on June 26, 2012. In particular, when asked to bend forward and to try to touch his toes, the doctor told him that he was “too weak.” The doctor pushed the injured worker’s lower back with his right hand to force him to go further. He testified credibly that his body moved forward a bit, and he felt increased pain. (See MOH, dated 8/19/2014 at the middle of page 5.)
Mr. Sikder has not felt that way with any of the other doctors he has been examined by, and in particular the doctors he has been examined by in this case.” Sikder v. Luxor Cab Company Inc 2014 Cal. Wrk. Comp. P.D. LEXIS 627 (Board Panel Decision)
Can a QME Terminate an Evaluation? Abusive, Disruptive, or Intoxicated Injured Workers
There are two situations in which a QME can terminate the QME Evaluation.
The first situation is the case of an “Abusive/Disruptive Injured Worker.” Per the Regulations, QMEs are not required “to undertake or continue a comprehensive medical-legal evaluation where the injured worker or his/her representative uses abusive language towards the evaluator or evaluator’s staff or deliberately attempts to disrupt the operation of the evaluator’s office in any way. The evaluator shall state under penalty of perjury, the facts supporting the termination of the evaluation process. Upon request, the Medical Director shall investigate the facts and make a final determination of the issue(s). Cal. Code Regs., tit. 8, § 41(h)
The second situation is the case of the “Intoxicated Injured Worker.” Per the Regulations, QMEs are not required to “undertake or continue a comprehensive medical-legal evaluation where the injured worker is intoxicated or under the influence of any medication which impairs the injured worker’s ability to participate in the evaluation process. The evaluator shall state under penalty of perjury, the facts supporting the termination of the evaluation process. Upon request, the Medical Director shall investigate the facts and make a final determination of the issue(s).” Cal. Code Regs., tit. 8, (i)
Note: An Intoxicated Injured Worker situation is not necessarily “the fault” of the Injured Worker. There are times at which an Injured Worker is on prescription medications that may give rise to possible intoxication. The Injured Worker might have felt that they needed to attend the evaluation despite being medicated. This is something that can be understandable by all parties to the case. An Injured Worker being under the influence of “street drugs” or “alcohol,” however, will most likely be viewed in a poor light.
The QME Treating or Soliciting to Provide Treatment
There is a Regulation that the QME should refrain “from treating or soliciting to provide medical treatment, medical supplies or medical devices to the injured worker.” Reg Section 41(a)(4.)
This regulation is understandable. However, based upon my experience, there have been times in which an Injured Worker required immediate medical attention while attending their QME evaluation. I am aware of circumstances in which an Ambulance was called when an Injured Worker was in significant distress. I would contemplate that a QME might feel the need to provide some medical care in a “life threatening” situation.
What Should an Injured Worker Do If They Feel That Their Rights Are Violated?
The Regulations provide that Injured Workers can terminate the QME Evaluation. This, however, should be done with some caution. If there is a termination of the QME Evaluation, it is possible that a new QME will be assigned to the case. There must be “good cause” to justify terminating the evaluation.
The Regulations provide that “If the injured worker terminates the examination process based on an alleged violation of section 35(k), 40, 41(a) or 41.5 of Title 8 of the California Code of Regulations, and the Appeals Board later determines that good cause did not exist for the termination, Regulation 41(g.)” If the court finds that “good cause did not exist for the termination, the cost of the evaluation shall be deducted from the injured worker’s award.” Supra.
What If I Need Legal Advice?
If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years.