As a result of the Coronavirus Disease, Injured Workers’ access to Treating Physicians and Evaluating Physicians have been compromised. There are Injured Workers who are on quarantine and are not able to attend appointments or evaluations. These appointments are important to Injured Workers in that these reports are the basis for the provision of workers’ compensation benefits such as temporary disability payments, permanent disability benefits, additional medical treatment such as a referral to procedures, testing, and specialties. These evaluations can also provide the basis for Insurance Companies accepting the Injured Workers’ Claim as industrial.
Physicians and Evaluators also having problems with their availability. Currently, they may not be able to provide services in a “face-to-face” manner as well. Some of the reasons being that a large number of physicians, because of their age, are “at risk.” Also, they may either be on quarantine or have closed their offices to the public.
Prior to the Coronavirus Disease (Pre-C.D.), California had enacted laws concerning tele-health and tele-evaluations. Prior to the Coronavirus Disease, tele-health and tele-evaluations were performing treatment and evaluations of Injured Workers. Pre-C.D., tele-health and tele-evaluations were somewhat controversial and disfavored. Tele-health and tele-evaluations, in fact, were so controversial that there was litigation concerning its employment. Currently, however, its popularity has increased due to its ease and ability to work within the parameters of social distancing.
Recently, some Insurance Companies and their vendors, in light of the Coronavirus Disease, are offering telehealth alternatives. Some are offering “virtual physical therapy.”
What is California’s Definition of Telehealth?
California’s definition of Telehealth is “the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at the distant site. States that telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers.”
The standard of care is supposed to “is the same whether the patient is seen in-person, through telehealth or other methods of electronically enabled health care. Physicians need not reside in California, as long as they have a valid, current California license.”
How Can Telehealth Services Can Be Provided?
“[U]nder sections 686 and 2290.5(a), a health care practitioner may provide synchronous (i.e., real-time) telehealth services from his or her “distant site” to a patient’s “originating site” (i.e., the place where the patient is located at the time the services are provided). Nothing in section 2290.5 states that the patient’s “originating site” must be within California. Indeed, nothing in section 2290.5 gives any indication of the purpose for distinguishing the “originating site” and the “distant site.” Accordingly, a California-licensed health care provider may provide telehealth services while he or she is located in California, whether or not the patient is also located in California. Moreover, if telehealth services are provided in accordance with Business and Professions Code section 2290.5, California law precludes a health insurer or health care service plan from limiting the type of setting for where and how the telehealth services are provided. (Ins. Code, § 10123.85; Health & Saf. Code, § 1374.13.)
In the case of Oranje v. Crestwood Behavioral Health, 2014 Cal. Wrk. Comp. P.D. LEXIS 602 (Panel Decision), the WCAB found treatment from a California provider to an Injured Worker who lived out of California to be permissible. It the case. it was reported that “Defendant correctly points out that, under Nevada law, a person who [*8] is engaged in the practice of marriage and family therapy must be licensed under Nevada law. (Nev. Revised Stats. 641A.410; see also 641A.080.) However, MFT Jones was in California, not Nevada, while he was providing telehealth services to applicant. Defendant has not provided any authority standing for the proposition that a licensed medical health provider located in California is violating Nevada law when providing telehealth services to a Nevada resident. In any event, it is not relevant to our determination whether MFT Jones might have violated Nevada law. Labor Code section 3600.5(a) entitles a worker who is injured while “regularly employed in the state . . . to compensation according to the law of this state.” (Emphasis added.) Thus, our concern is only whether the treatment is consistent with California law. As discussed above, MFT Jones’ telephonic therapy sessions do not violate California law.”
Are Tele-QME Evaluations Permissible?
Yes. However, there must be compliance with the QME laws and regulations.
Note: In my practice, the QMEs have reached out to both parties to obtain consent to do such evaluations. Further, these evaluations tend to be within the specialties of psychology and psychiatry.
A Tele-QME Evaluation was stricken when there was non-compliance with Labor Code Section 4628. Beitpolous v. Cal. Corr. Healthcare Servs., 2018 Cal. Wrk. Comp. P.D. LEXIS 82, 83 Cal. Comp. Cases 1078 (Panel Decision) (Note: Impliedly, such reports are admissible if done properly.) In the matter, the WCAB noted that “[h]ere, the QME’s evaluation of applicant was by way of videoconferencing, and the novel issue before us is how to apply section 4628(a) when that technology is used in a medical-legal evaluation. In addition, here the QME was permitted to conduct examinations via telemedicine as a reasonable accommodation under the ADA. Unfortunately, there is little express statutory or regulatory guidance under these particular circumstances, and we are aware of no specific statute or regulation that prohibits or condones the use of telemedicine for a QME evaluation.
Section 4628(a) states in pertinent part that:
(a) Except as provided in subdivision (c), no person, other than the physician who signs the medical-legal report, except a nurse performing those functions routinely performed [*11] by a nurse, such as taking blood pressure, shall examine the injured employee or participate in the nonclerical preparation of the report, including all of the following:
- Taking a complete history.
- Reviewing and summarizing prior medical records.
- Composing and drafting the conclusions of the report.
* * *
(i) Any person billing for medical-legal evaluations, diagnostic procedures, or diagnostic services performed by persons other than those employed by the reporting physician or physicians, or a medical corporation owned by the reporting physician or physicians shall specify the amount paid or to be paid to those persons for the evaluations, procedures, or services. This subdivision shall not apply to any procedure or service defined or valued pursuant to Section 5307.1.
Section 4628 was enacted as part of an overall reform package in 1989. The Legislature referred to section 4628 as an anti-ghostwriting statute because it was designed to protect the reliability of a medical evaluation by controlling the quality of the medical-legal report. Consistent with the nature and purpose of the statute, the Legislature drafted a relatively unambiguous statute leaving little room for equitable [*12] considerations. (See Scheffield Medical Group, Inc. v. Workers’ Comp. Appeals Bd. (1999), 70 Cal. App. 4th 868, 881 (internal citations omitted).) Section 4628 is a “sunshine statute,” and the goal is to have physician evaluators write their own reports and identify any assistance that they have received. Specifically, the statute requires that a doctor who signs a report has actually examined an injured worker and prepared the evaluation. As applicable here, all persons, both in-house and contracted out, who perform diagnostic tests are to be accurately described so that the litigants are aware of each person involved in the evaluation process.
[**1084]
Here, QME Dr. Emad’s report contained a full disclosure as to the circumstances of the evaluation, and in that respect, the report fulfills the purpose of section 4628. And, as noted above, Dr. Emad was granted a reasonable accommodation to use telemedicine to conduct examinations. However, Dr. Emad enlisted Dr. Tichio, a chiropractic physician, to conduct one of the most sensitive parts of the QME examination: the physical measurements of applicant’s disability. Yet, Dr. Tichio did not sign the report or issue any other form of verification [*13] that would establish the reliability of Dr. Tichio’s measurements. In fact, neither party knew the identity or specialty of the assisting physician until the receipt of Dr. Emad’s report. Consequently, since defendant had no prior notice of Dr. Emad’s intention to use Dr. Tichio as a surrogate, defendant was not provided an adequate opportunity to object to the use of Dr. Tichio prior to the issuance of the report.
Section 4628(a) and constitutional principles of fairness and due process require that the identity of a physician assistant who is to physically perform the clinical examination be disclosed to the parties promptly upon the QME’s selection. Thus under these circumstances, absent an agreement by the parties or order by the Appeals Board, a replacement QME should be permitted, and we agree that the WCJ properly ordered that a new QME panel issue.”[emphasis added]
As an Attorney, Do You Have Any Concerns Over Telehealth and Tele-Evaluations?
Yes. The term “face to face” is a misnomer with respect to an “in-person” evaluation. There are many things that can be determined when meeting someone in person versus over a video conference. Most importantly, the sense of smell is taken out of the equation. A medical professional’s sense of smell can tell you a lot about an individual.
The ability to smell an individual can tell you whether the individual is a substance user or abuser. Tobacco, Alcohol, and Marijuana can be detected by one’s sense of smell. Further, the fact that an individual is attending an appointment having recently used one of those substances is of import.
Further, hygiene is also important. A medical professional can detect the lack of hygiene, by smell. This can indicate depression, homelessness, or difficulties in performing activities of daily living. It can evidence of one having urinary issues or bowel movement issues.
In sum, one’s sense of smell is a powerful means of detecting an individual’s activities of daily living. Activities of Daily Living are important in making assessments in treating and evaluating industrially injured workers. This important factor can get lost in the practice of Tele-Health and Tele-Evaluations.
What If I Need 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. Contact us for more information.
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