Back to Resources

Legal Updates

Qualified Medical Examinations in a COVID-19 Crisis and Potential Virtual Solutions

It seems no one will agree on anything these days, except that these are interesting and tumultuous times we now live in.  In the ever-evolving workers’ compensation world, the California DWC has been issuing periodic advice and guidance.  The latest conundrum in our workers’ compensation realm is the crucial Panel Qualified Medical Examination—whether the Medical Unit will continue to issue new panels, and more pressing, whether the existing medical examinations will go forward or not.

In the past several weeks, some of the previously scheduled examinations have proceeded in person, in normal fashion. Obviously, there are many people involved who must be in accord to ensure these evaluations go forward, assessing everyone’s safety concerns first and foremost: Is the doctor still willing to see Applicant in person? Is Applicant still willing to see a doctor? How does the interpreter feel about being there? What precautions are set to negate risk of exposure?

Beyond the past couple weeks of the transition period, as we proceed deeper into the heart of COVID-19 darkness, it appears we will be seeing more QMEs and Applicants rescheduling or outright canceling evaluations until more guidance is provided on how the evaluations should proceed safely. In consideration of public health, understandably so.

Recently, a California law firm representing more than 100 QMEs asked the Department of Industrial Relations (DIR) to adopt an emergency policy change that would allow remote evaluations in response to the COVID-19 outbreak. This is an extraordinary change considering a QME is required to physically examine Applicants and conduct physical testing as needed.  The DWC’s response, was a resounding “Maybe.  Possibly.  Talk amongst yourselves and give a shot, folks.”  

In fairness, we are all scrambling in this crisis, and a change with such considerable implications does not happen overnight. There are many moving parts to medical evaluations, and even more so when we factor in the idea of remote technology in a slow-to-change system such as workers’ compensation. Here are some of the questions and issues that need to be addressed as we contemplate remote examinations:

  1. Parties’ Agreement. As stated above, are all parties—doctors, patients, interpreters, and attorneys—in complete accord?  This may be hard enough on its own, as oftentimes, doctors do not wish to have their evaluations recorded. To assuage this concern, parties could consider a private, non-recorded live stream (via a HIPAA-compliant platform naturally). But again, the first hurdle to an agreement depends on parties’ motivation to agree to a new virtual examination platform, as there may be fundamental resistance to broad changes to a system and the infusion of new technology. What may motivate parties past this resistance is whether there are there exigent circumstances as to push this QME forward urgently. Or parties may be weighing whether this crisis will abate in the coming weeks, that instead they should simply push out the evaluation to a later date. This will all have to be assessed on a case-by-case basis.
  2. Legal Objections and Issues of Substantial Medical Evidence. What if the examination proceeds virtually, but one of the parties finds the doctor’s report objectionable due to the virtual aspect?  For example, what if they find a lack of thorough physical examination was an issue, or there is a question about the method used to measure an impairment? This may even necessitate an advanced, mutual waiver of the right to object to the virtual nature of the examination. There may be medical specialties that do not require extensive physical examinations, and a doctor may already have the necessary diagnostics to render an opinion, following a face-to-face virtual discussion with Applicant and a review of pertinent records, suffice to constitute substantial reporting.
  3. Logistics of a Virtual Examination.  Setting up a telephone examination would not likely pass any type of muster, so videoconferencing would be essential at a bare minimum.  With that comes additional technical arrangements, including ensuring Applicants have the equipment, connection, and applicable training to participate.  Even assuming a face-to-face video interface is possible, what would be the means for physical testing, such as Range of Motion measurements, or administering an MMPI test or a grip strength test, or assessing gait abnormality?  It would appear that any and all proper testing would have to be done at a third-party center in person, much like other diagnostics (MRIs, EMG/NCVs, X-Rays, etc.).  

Many of us are already taking advantage of telephonic and video conferencing with our treating doctors on a personal basis.  A telephonic appointment with your PCP to refill your cholesterol medication in lieu of an office visit is easy enough; however, we can all agree that QMEs are another animal.  However, if you are willing to navigate through the obstacle course detailed above, and urgency of the evaluation requires it, it is possible to make an examination via virtual means.  Times are certainly changing and as the world begins to adapt, so must the workers’ compensation system.

We should continue to keep each other apprised of industry updates and opportunities.  And beyond that, I hope everyone is safe and well.