Is an Electronically Signed Medical Report Legally Sufficient Evidence in a Workers’ Compensation Proceeding?
Rule 10606 requires medical evidence to be produced in the form of written reports with the report to include, among other things, the signature of the physician. (Cal.Code Regs., tit. 8, §10606(o)).
With the advent of the digital age, the question is whether an electronic signature complies with the requirement that a medical report be “signed by the physician.”
Section 1633.7 of the California Civil Code states, “a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. c) If a law requires a record to be in writing, an electronic record satisfies the law. d) If a law requires a signature, an electronic signature satisfies the law.”
Government Code section16.5 (d) defines a digital signature as “…an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature.” However, subsection (b) states, “ The use or acceptance of a digital signature shall be at the option of the parties. Nothing in this section shall require a public entity to use or permit the use of a digital signature.”
Although the Workers’ Compensation Appeals Board has the Electronic Adjudication Management System (EAMS) and the Electronic Data Exchange System (EDEX), whether the Board’s embrace of the digital age includes an electronic signature on a medical report is far from clear.
Section 4.0 of the California Division of Workers’ Compensation Medical Billing and Payment Guide 2010 states, “An electronic or digital signature shall be recognized as valid if it conforms to the requirements for digital signatures under Government Code §16.5 and the Secretary of State’s implementing regulations at Title 2, California Code of Regulations §§ 22000 – 22003, or if it conforms to other provisions of law.” (See Electronic Medical Billing and Payment Companion Guide, Appendix E).
On the other hand, the only direct reference to electronic signatures on the Division of Industrial Relations website is contained in Frequently Asked Questions for Utilization Review regarding what is considered a legal signature in a Request for Authorization (RFA):
Q. What type of signature for a RFA is considered a legal signature?
A. The signature must be a written, original; a typed name without signature or a signature stamp is not sufficient. Electronic signatures have not yet been accepted in workers’ compensation cases in California.
Although there is substantial statutory and regulatory authority providing an argument that an electronic signature constitutes a legal signature, until electronic signatures are accepted in workers’ compensation cases, the better practice is to ensure that medical reports (especially Utilization Review reports) are signed by the physician.