On March 10, 2021 the Division of Workers’ Compensation (DWC) announced Emergency Regulation in Response to COVID-19 Title 8 CCR section 46.2, will be in effect until October 12, 2021. This emergency regulation which relates to both medical-legal evaluation procedure and reporting became operative as of May 14, 2020 and was previously set to expire by operation of law on March 12, 2021.

Regulation section 46.2 (8 Cal. Code Regs. § 46.2) was codified with the intent of remedying and avoiding undue medical-legal discovery delay by addressing the manner by which medical-legal evaluations may proceed during this Covid-19 state of emergency period.

In practice I have observed 2 contests arise in application of Regulation section 46.2 (8 Cal. Code Regs. § 46.2). One relates to QME legal unavailability, and the second relates to objection to telehealth evaluation.

Turning first to the issue of requests for replacement QME panels under the legal basis of QME “unavailability,” While section 31.3(e) of Title 8 of the California Code of Regulations provides that a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within sixty (60) days of the date of the appointment request, that party may waive the right to a replacement in order to accept an appointment no more than ninety (90) days after the date of the party’s initial appointment request. When the selected QME is unable to schedule the evaluation within ninety (90) days of the date of that party’s initial appointment request, either party may report the unavailability of the QME and the Medical Director shall issue a replacement pursuant

Regulation section 46.2 (b) (8 Cal. Code Regs. § 46.2) pushes back the timeframe for legal QME “unavailability” by suspending regulation section 31.1(e) (8 Cal. Code Regs § 31.1), and supplants in place that if a party with the legal right to schedule an appointment with a QME is unable to obtain an appointment with a selected QME within 90 days of the date of the appointment request, that party may waive the right to a replacement QME in order to accept an appointment that is no more than 120 days after the date of the party’s initial appointment request. When the selected QME is unable to schedule the evaluation within 120 days of the date of that party’s initial appointment request, either party may report the unavailability of the QME and the Medical Director shall issue a replacement pursuant to section 31.5 of title 8 of the California Code of Regulations upon request, unless both parties agree in writing to waive the 120-day time limit for scheduling the initial evaluation.

Under Regulation 46.2 (8 Cal. Code Regs. § 46.2), the Medical Director is not required to replace the QME panel unless the QME is unavailable for a 120 day period. The timeframe from the date of request to the date of offered appointment date must be carefully calculated, and the fact that your QME cannot provide you with an appointment date must be clearly communicated to the Medical Unit on QME Form 31.5 in order to succeed on a replacement panel request.

A recently issued Board panel decision provide us with further instruction on the interpretation of, and enforcement of Regulation section 46.2 (8 Cal. Code Regs. § 46.2), to the extent that it provides for telehealth comprehensive medical-legal evaluations. 

In Rosenbrook v. Knight-Swift Transportation Holdings, Inc., 2021 Cal. Wrk Comp. P.D. LEXIS 16 the panel held a telehealth (i.e., telephonic or video) medical-legal evaluation that meets the conditions set forth in emergency regulation section 46.2(a)(3) is an appropriate alternative to an in-person evaluation during the current COVID-19 pandemic. The panel held a telehealth medical-legal evaluation cannot be unreasonably denied when a physical examination is not necessary, and all the following conditions are satisfied:

(A) The injured worker is not required to travel outside of their immediate household to accomplish the telehealth evaluation; and

(B) There is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), or the physician is asked to address the termination of an injured worker’s indemnity benefit payments or address a dispute regarding work restrictions; and

(C) There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the QME. Agreement to the telehealth evaluation cannot be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied under this section, they may file an objection with the Workers’ Compensation Appeals Board, along with a Declaration of Readiness to Proceed to set the matter for a hearing;

(D) The telehealth visit under the circumstances is consistent with appropriate and ethical medical practice, as determined by the QME; and

(E) The QME attests in writing that the evaluation does not require a physical exam.

Defendant in Rosenbrook declined to authorize a telehealth evaluation with the QME despite the fact the QME had informed the parties in writing that he could conduct the evaluation by telehealth without a physical examination. By way of their Petition for Reconsideration, the defendant in Rosenbrook asserted that the elements of 46.2(a)(3) were not met. The Panel rejected the contention. The Panel also rejected defendant’s secondary contention that proceeding with a telehealth evaluation would violate its right to due process. The Panel reiterating their rational applied in permitting remote testimony to proceed at trial settings noting, “[d]ue process is the process that is due under the circumstances as we find them, not as we might wish them to be.” (Gao v. Chevron Corporation , 2021 Cal.Wrk.Comp. LEXIS 1)

Rosenbrook illustrates that so long as emergency Regulation 46.2 is in effect, it will be difficult to establish a basis for denying a telehealth evaluation. So long as the elements set forth in 46.2 are met a telehealth evaluation may not be unreasonably denied. However there is no indication that the precedent set forth in Rosenbrook would restrain parties from contesting the probative value of medical legal reporting prepared subsequent to telehealth remote evaluation.