Calif Edition Banner March 2010
Vol 2, Issue 27

Find Solutions & Strategies                             July 5, 2011

Calendar 60 DaysPanel QME Supplemental Reports
 
When does the 60-day time frame commence for issuing a supplemental report?
In This Issue
* PQME SUPPLEMENTAL REPORTS
* RECENT PANEL DECISION: CIGA & assignment of liens
* BLOG ROUND UP: Fraud, CCC's
* JOB POSTING: Defense attorney
* MSP COMPLIANCE BOOK
* NEWS HEADLINES: SCIF's medical network charges
* CITEABILITY OF PANEL DECISIONS
* PANEL DECISIONS REPORTER
* eNEWSLETTER ARCHIVES

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 

 

I've been busy working on the 2011 edition of Occupational Injuries and Illnesses. Stay tuned for details on what's new in our medicolegal treatise.
  
Sincerely,
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development

WorkCompCentral Education thumbnail

Top Secrets for Rating Permanent Disability

 

August 20, 2011

 

Colleen CaseyRobert Rassp

 

Instructors: Judge Colleen Casey

& Robert G. Rassp, Esq.

 

Now that the 5th DCA has denied writ of review in Almaraz II, some legal observers say the WCAB's en banc opinion expanding rebuttal of PD ratings to "the four corners of the  Guides" is now effectively final. The instructors for this live seminar have identified more than a dozen PD rating issues for examination. 

  

Click here for details.

PQME SUPPLEMENTAL REPORTS

What Starts the Applicable Time Frame Within Which a Panel QME Must Issue a Supplemental Report?

 

There are numerous statutes applicable to the Panel Qualified Medical Evaluator's (PQME) responsibilities in connection with the evaluation of an injured worker within the workers' compensation system.

 

There are statutes delineating how the information must be sent to the PQME, who has the legal right to set up the PQME examination, how soon the PQME must see the employee after the appointment is set-up, how long the PQME has to issue his report after the examination, and the list goes on.

 

One such rule recently addressed by a panel of commissioners is the specific rule applicable to the time frame within which a Panel QME must issue a supplemental report. The question often arises, should the time frame commence as of the date the party requests the report, or the date upon which the request was received by the doctor?

 

In Lopez v. City of Modesto, 2011 Cal. Wrk. Comp. P.D. LEXIS 80, a panel of commissioners was confronted with the situation where a party had requested a supplemental report from a Panel Qualified Medical Evaluator (PQME) and the Panel QME had not responded within 60 days of the request for the supplemental report. Read more.

 

Lexis.com subscribers can link to the cases, statutes, and rules cited in this article. Be sure you're already logged onto your lexis.com account.

SNEAK PREVIEW: RECENT PANEL DECISION

NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter. Panel decisions are citeable, but not binding precedent.

 

California Insurance Guarantee Association; Covered Claims; Assignment of Liens. WCAB, granting removal, rescinded WCJ's Order Quashing Subpoena Duces Tecum issued by CIGA to lien assignee and held that CIGA was entitled to discover contract documents pertaining to validity of assignment of medical provider's lien to lien representative so as to obtain evidence regarding whether claim asserted by assignee was a "covered claim" pursuant to Insurance Code section 1063.1 (c)(9)(B) for which CIGA has liability. See Green panel decision.

 

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

blogs at the lexisnexis workers' comp law community 

 

Fraud Sign

Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/30/2011) - A Shell Company Uses Fake ID to Pay Undocumented Workers, by LexisNexis Workers' Compensation Law Community Staff. Read it.

  

  
Cal Comp CasesCal. Comp. Cases June Advanced Postings (6/23/2011). Here's the fourth batch of advanced postings for the June 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it
  
  
Cal Comp CasesCal. Comp. Cases July Advanced Postings (6/30/2011). Here's the first batch of advanced postings for the July 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it
  
  
  
job posting 
Goldman Magdalin Krikes

WC Defense Associate. Brea office of Goldman, Magdalin & Krikes, LLP seeks attorney with minimum 5 years workers' comp defense experience, competitive salary & benefits. Submit in Word format cover letter, resume, salary history/requirements to dcaldarelli@gmklaw.com.

HOW TO ACHIEVE MEDICARE SECONDARY PAYER COMPLIANCe

 MSP Red CC 

The Complete Guide to Medicare Secondary Payer Compliance

Jennifer C. Jordan, Esq., Editor-in-Chief

To order, go to www.lexisnexis.com/Medicare.

 

Medicare Secondary Payer Compliance is an elusive area of law - tucked away in various public laws, statutes, regulations and CMS guidance materials.

 

Worse, many people don't realize that the CMS approval process for MSAs is voluntary-and carries an inherent cost.

 

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You'll also learn that CMS' preference may not be the only way to achieve MSP compliance.

 

Attorneys agree! This is the first comprehensive resource for achieving Medicare Secondary Payer Compliance.

  

"Ms. Jordan and her contributors provide concise, practical analysis of the multiple layers and nuances of Medical Secondary Payer compliance. The Guide is a valuable resource for plaintiff and defense counsel, as well as insurance carriers, employers, and third party administrators."

 

- Ronald E. Weiss, Esq., Hamberger & Weiss, Rochester, New York. 

 

"The range of topics included in the book and updates is a beacon of wisdom in the confusing MSP compliance field."

 

- Tim Nay, Esq., Law Offices of Nay & Friedenberg, Portland, Oregon. Mr. Nay is a co-founder of the National Alliance of Medicare Set-Aside Professionals (NAMSAP). 

 

"I have a copy of Jennifer Jordan's book The Complete Guide to Medicare Secondary Payer Compliance and I am most impressed by same! I have recommended it to a number of attorneys here in Georgia."

 

- Richard C. Kissiah, Esq., Kissiah & Lay, Alpharetta, Georgia. 

 

"Finally, someone delivers a clear, concise reading in this area, with some definitive answers for both lawyers and claims specialists and accurate reporting dealing with MSP compliance and MSA allocations with all of the necessary resources found in one place."

 

- Brad Bleakney, Esq., Bleakney & Troiani. Read his complete review at Illinois Workers Compensation blog.
 

An excellent new book ... a one-of-a-kind resource ... [Jennifer C. Jordan's] straight-talk is much appreciated when it comes to this illusive area of the law." 

 

- Rebecca Shafer, JD, President, Amaxx Risk Solutions, Inc.

 
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Implementation of the MMSEA reporting program is underway. Don't wait to order!

> Read more about the contents (1,350 pages). List Price: $179



NEWS HEADLINES

CA: DWC Adjusts OMFS (DME, Prosthetics, Orthotics and Supplies) to Conform With Medicare Payment System.

CA: DWC Posts Increased Mileage Rate for Medical Travel Expenses Effective 7/1/2011.

CA: CAAA Asks DWC to Block Medical Network Charges, Says SCIF Is Interfering With Doctors' Medical Care.

CA: Calif Dept of Public Health Experiences Second Major Data Breach in Six Months, Involves Workers Comp Documents.

CA: Governor, Democrats Reach Budget Deal Without Renewed Tax Hikes.

CA: Governor Makes Appointments: Special Counsel to Labor Commissioner, Deputy Chief for Health, Div. of Occupational Safety and Health.

CA: CHSWC Releases for Public Comment: EAMS Information Technology Needs Assessment Report.

CA: 5th DCA Almaraz Case: State Fund Files Petition for Review With Supreme Court.

citeability of panel decisions

PDCITEPractitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].

 

Lexis.com subscribers can link to the cases cited above.

NPD reporter banner

NPDDesigned specifically for Lexis.com subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

Thumbs Up JULY ISSUE NOW IN PRODUCTION


We do the legwork for you: Our editorial consultants pour through hundreds of cases to find noteworthy decisions that you should know about.

What you get each month: Brief summaries of typically 40 to 65 cases, arranged by topic. Commentary articles written by guest contributors.
 
How you'll get it: (1) PDF document (sent via email), which allows Lexis subscribers to link directly to the WCAB decisions on lexis.com; and (2) Print version, which can be stored in a binder.
 
View sample: Click here
 
What it costs: List price - $204/yr. PRICE INCLUDES BOTH PRINT AND ELECTRONIC DOCUMENT
 
pqme, continued...

PQME  

There are several statutes applicable to the time frame within which a PQME must issue a report. Title 8, California Code of Regulations 38(a) states:

 

"The timeframe for an initial or a follow-up comprehensive medical legal evaluation report to be prepared and submitted shall not exceed thirty (30) days after the QME, agreed panel QME or AME has seen the employee or otherwise commenced, the comprehensive medical legal evaluation procedure.  If an evaluator fails to prepare and serve the initial or follow up comprehensive medical legal evaluation report within thirty (30) days and the evaluator has failed to obtain approval from the medical director for an extension of time pursuant to this section, the employee or the employer may request a QME replacement pursuant to section 31.5 of Title 8 of the California Code of Regulations. Neither the employee nor the employer shall have any liability for payment for the medical evaluation which was not completed within the time frames required under this section unless the employee and the employer each waive the right to a new evaluation and elect to accept the original evaluation, in writing or by signing and returning to the medical director either QME form 113 (notice of denial of request for a time extension)  or QME Form 116 (Notice of Late QME/AME Report- No Extension Requested)."

 

Subsection (h) states the following:

 

"The time frame for supplemental reports shall be no more than sixty (60) days from the date of a written or electronically transmitted request to the physician by a party.  The request for a supplemental report shall be accompanied by any new medical records that were unavailable to the evaluator at the time of the original evaluation and which were properly served on the opposing party as required by labor code section 4062.3.  An extension of the sixty (60) day time frame for completing the supplemental report, of no more than thirty (30) days, may be agreed to by the parties without the need to request an extension from medical director."

 

Subsection (a) talks about the 30-day time frame for service of "the initial or a follow-up comprehensive medical legal evaluation". Subsection (h) talks about the 60-day time frame for service of a "supplemental" report. It is a little confusing what the difference is between a "follow-up" report which must be served in 30 days and a "supplemental" report that is allowed 60 days for service. As subsection (h) is more specific to the request for a supplemental report, it would appear that the 60-day time frame would apply to a request for a supplemental report.

 

Two major public policy considerations have to be balanced when trying to interpret these rules. The first public-policy goal is to prevent doctor shopping, and the second public-policy goal is to speed up the process to deliver benefits promptly.

 

The commissioners in Lopez determined that Section 38(h)'s 60-day time frame in which a Panel QME has to respond to a supplemental report request should not commence until the QME actually receives the request.

 

Though the commissioners' decision here is brief, there are several reasons why their interpretation of this statute is correct. The statute makes reference to the transmission or communication of the request. The statute states "from the date of a written or electronically transmitted request to the physician by a party". If the 60 days became operable as of the date on the request, this language would be devoid of meaning.

 

Additionally, if the 60-day period is determined to begin as of the date on the supplemental request, then the doctors' offices around the State will be at the whim of the individual party's practice of getting the mail out in a proper and timely fashion. If an office fails to send out a supplemental request in a timely fashion, or fails to send the request at all, then that party may elect to simply remove the doctor for not timely responding. A party could very easily manipulate the QME process by sitting on supplemental report requests to an objectionable physician.

 

In conclusion, though the litigation involved with removing the PQME is not likely going to disappear, as the commissioners continue to address these issues, the litigation over these rules will likely decrease, allowing the parties to instead focus their attention on the more substantive issues applicable to a given case.

 

Reminder: Practitioners should check the subsequent history of this panel decision before citing to it.

 

Any information or opinion contained in this commentary are not necessarily endorsed by LexisNexis or its affiliates or by the LexisNexis editorial consultants who review panel decisions.

 

Copyright 2011 LexisNexis. All rights reserved. This article will be published in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.

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enewsletter archives
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not work...report any linking problems to Robin.E.Kobayashi@lexisnexis.com.

June 27, 2011: An MPN World: Change of Treating Physician

http://archive.constantcontact.com/fs077/1102828640660/archive/1106168961873.html

June 20, 2011: Sanctions: Three-Cent Dispute

http://archive.constantcontact.com/fs077/1102828640660/archive/1105985996029.html

June 13, 2011: A Balanced Approach to Litigation

http://archive.constantcontact.com/fs077/1102828640660/archive/1105844751127.html

June 6, 2011: Post-Valdez Defense Protocols

http://archive.constantcontact.com/fs077/1102828640660/archive/1105783834099.html

May 31, 2011: Stress-Related Compensable Consequence Injuries

http://archive.constantcontact.com/fs077/1102828640660/archive/1105669474005.html

May 23, 2011: Developing the Record

http://archive.constantcontact.com/fs077/1102828640660/archive/1105575703257.html

May 16, 2011: Overpayments

http://archive.constantcontact.com/fs077/1102828640660/archive/1105406423234.html

May 9, 2011: Third Party Cases

http://archive.constantcontact.com/fs077/1102828640660/archive/1105318030890.html

May 2, 2011: Temporary Total Disability

http://archive.constantcontact.com/fs077/1102828640660/archive/1105244021985.html

April 25, 2011: Non-MPN Physician Reports

http://archive.constantcontact.com/fs077/1102828640660/archive/1105193487500.html

April 20, 2011 (Special Alert): Valdez En Banc

http://archive.constantcontact.com/fs077/1102828640660/archive/1105235321520.html

April 18, 2011: 2011 Alphabet Soup

http://archive.constantcontact.com/fs077/1102828640660/archive/1105150789071.html

April 11, 2011 (Special Alert): Hernandez significant panel decision

http://archive.constantcontact.com/fs077/1102828640660/archive/1105133131069.html

April 11, 2011: Rule 38 and Medical Examiner Reports

http://archive.constantcontact.com/fs077/1102828640660/archive/1105054845922.html

April 4, 2011: Penalties Post SB-899

March 28, 2011: Verification and Lien Claimants

http://archive.constantcontact.com/fs077/1102828640660/archive/1104894131044.html

March 21, 2011: Workers' Comp and Earthquakes

http://archive.constantcontact.com/fs077/1102828640660/archive/1104811663390.html

March 17, 2011 (Special Alert): Guitron En Banc

March 14, 2011: LC 5710 Attorney's Fees

http://archive.constantcontact.com/fs077/1102828640660/archive/1104743080821.html

March 7, 2011: Mediation

http://archive.constantcontact.com/fs077/1102828640660/archive/1104680877858.html

February 28, 2011: Arbitrations

http://archive.constantcontact.com/fs077/1102828640660/archive/1104610163532.html
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians
http://archive.constantcontact.com/fs077/1102828640660/archive/1104523390560.html
February 14, 2011: In Memoriam: Carrie Nevans
http://archive.constantcontact.com/fs077/1102828640660/archive/1104442568858.html
February 7, 2011: Good Faith Personnel Actions
http://archive.constantcontact.com/fs077/1102828640660/archive/1104364443854.html
January 31, 2011: Service in EAMS

January 24, 2011 (addendum): Sanctions; EAMS rules

http://archive.constantcontact.com/fs077/1102828640660/archive/1104294156793.html
January 24, 2011: Public Self-Insured Employers

http://archive.constantcontact.com/fs077/1102828640660/archive/1104266393095.html 

January 17, 2011: CHSWC Report on Liens

http://archive.constantcontact.com/fs077/1102828640660/archive/1104223885119.html 

January 10, 2011: Temporary Workers

http://archive.constantcontact.com/fs077/1102828640660/archive/1104176109442.html 

January 3, 2011: Permanent Total Disability & Total Loss of Future Earning Capacity

http://archive.constantcontact.com/fs077/1102828640660/archive/1104077989541.html

 

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