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Remote Medical Treatment Examinations & Medical-Legal Appointments

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Remote Medical Treatment Examinations and Medical-Legal Appointments

On March 19, 2020, Gov. Gavin Newsom issued an executive order in response to COVID-19 requiring all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Although health-care providers and hospital personnel are part of the essential workforce, not all medical services are essential. The California Coronavirus (COVID-19) Response website states, "Non-essential medical care like eye exams, teeth cleaning, and elective procedures must/should be cancelled or rescheduled. If possible, health care visits should be done remotely."[1]

Employers generally view all workers' compensation doctors' visits as essential. Medical visits are necessary to determine whether an employee should remain off work, and if not, whether his or her work restrictions can be accommodated. Employers don't want COVID-19 restrictions to extend a worker's disability unnecessarily.

Many employees, in contrast, might feel that such appointments are not essential during the COVID-19 pandemic, particularly if their condition hasn't changed. Even employees who believe that the visits are essential, such as when they must renew a prescription, might fear contracting the coronavirus during a doctor visit.

COVID-19 prompted the Division of Workers' Compensation to issue a Newsline encouraging all parties to consider creative ways to provide care to injured workers. The DWC specifically noted that the increased use of telehealth (also called telemedicine) for medical treatment might be appropriate.[2]


Telehealth for Medical Treatment Appointments

Business and Professions Code § 2290.5(a)(6) defines telehealth as "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." Telehealth enables a physician to use video conferencing, video calling or other similar technology to evaluate a patient. The Workers' Compensation Appeals Board has recognized that telehealth services may be used to treat injured workers.[3] For further discussion on the use of telehealth, see "Sullivan on Comp" Section 7.3 Scope of Care –– Applied Cases. For a complete discussion on the timing of medical appointments and required reporting, see "Sullivan on Comp" Section 7.13 Primary Treating Physician.

Normally, before treating via telehealth, a physician must obtain consent from the injured worker. BPC 2290.5(b) states: "[T]he health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented." On April 3, 2020, however, Gov. Newsom issued an executive order suspending the requirement to obtain verbal and written consent before the use of telehealth services.[4]

On April 13, 2020, the DWC adopted changes to the fee schedule to encourage the use of telehealth during the COVID-19 public health emergency.[5] Essentially, the fee schedule was modified for physician services on or after April 15, 2020 to equalize the payment for a service whether provided in a physician’s office or through telehealth using real-time audio and video telecommunications. So the DWC encouraged the use of telehealth by making payment the same regardless of whether the evaluation is conducted in person or via telehealth.

On May 27, 2020, the DWC also gave notice that the American College of Occupational and Environmental Medicine (ACOEM) and MDGuidelines have released a Coronavirus (COVID-19) Clinical Practice Guideline.[6] The DWC supports this guidance and plans to adopt and incorporate the ACOEM guideline into the medical treatment utilization schedule (MTUS). But because the evidence-based management of COVID-19 is fluid and evolving, guidelines are published frequently, so the DWC will wait to adopt and incorporate the ACOEM's COVID-19 guideline into the MTUS until the frequency of updates slows to the point at which the formal adoption process can be completed.

In the meantime, treatment recommendations pertaining to COVID-19 should follow the MTUS medical evidence search sequence found in the California Code of Regulations, Title 8, § 9792.21.1. This regulatory sequence requires a search of the most current version of ACOEM guidance and is discussed further in "Sullivan on Comp" Section 7.31 Utilization Review — Medical Treatment Utilization Schedule.


Telehealth for Medical-Legal Examinations

Although telehealth services are permissible for treating an injured worker, normally they are not permitted for medical-legal evaluations. Qualified medical evaluators (QMEs) are required to conduct medical-legal evaluations face-to-face. California Code of Regulations, Title 8, § 49(b) defines "face to face time" as "only that time the evaluator is present with an injured worker." So it seems that QMEs must be physically present for specified time periods during an injured worker's examination, unless a video conference somehow could be seen to meet this definition (see "Sullivan on Comp" Section 14.44 Evaluation Requirements and Rights).

The Division of Workers' Compensation (DWC) noted that the QME program in California does not qualify as part of the critical infrastructure workforce under the Healthcare and Public Health Sector guidelines of the U.S. Department of Homeland Security. So the medical-legal services are not exempt from the governor’s stay-at-home order.

QME evaluations, however, serve a vital role in the workers' compensation system. They are needed to resolve disputes regarding injured workers' entitlement to workers' compensation benefits and their ability to return to work.

On March 28, 2020, the DWC issued a Newsline noting that "it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary."[7] At the time, the DWC made a "strong recommendation" regarding how parties should proceed with QME evaluations via telehealth.

On May 14, 2020, the Office of Administrative Law approved emergency regulations from the Division of Workers' Compensation (DWC) on the medical-legal process. The emergency regulations were drafted to address the ongoing need for medical-legal evaluations and to prevent a backlog resulting from the stay-at-home order. The regulations are intended to help injured workers and employers move their claims toward resolution while still allowing both injured workers and doctors to observe the stay-at-home order.[8]

As discussed below, the medical-legal regulations permit electronic service of medical-legal reports, give QMEs and Agreed Medical Examiners (AMEs) options for conducting and scheduling evaluations, and suspend several rules regarding the time limits for scheduling and complete medical-legal evaluations. Review the regulations here.

The regulations originally were set to expire in January 2021, but have been extended until Oct. 12, 2021.[9]

Electronic Service of Reports

Emergency California Code of Regulations, Title 8, Section 36.7 allows a QME, AME or other medical-legal report to be served electronically by the physician with the written agreement of the parties. The purpose of the regulation is to enable providers to serve medical-legal reports without requiring them or their staff to go into their office to complete the clerical functions necessary for physically mailing the medical-legal report. For a detailed discussion on the rules for serving medical-legal reports, see "Sullivan on Comp" Section 14.47 Service of Comprehensive Medical-Legal Reports.

When a party consents in writing to electronic service, it must provide its email address. The regulation adds that electronic service is not permitted on any unrepresented party or unrepresented injured worker. So if either the employer or the injured worker is unrepresented, electronic service would not be permitted on that party.

The medical-legal report or other papers must be transmitted to an email address maintained by the person or entity on whom it is served, using the most recent address provided to the physician by the party who consented to accept service electronically.

Service is deemed complete at the time of transmission. Any period of notice and any right or duty to act or make any response within any period or on a date certain after service of the document will be extended by two business days.

All the terms of CCR 36 and CCR 36.5 apply except that the reports may be served electronically. Mandatory form 122 may be replaced by an affidavit of proof of electronic service for medical-legal reports. A provider must maintain an original copy of all documents electronically served.

Rules on Evaluations

Emergency California Code of Regulations, Title 8, Section 46.2 gives a QME or AME three options for evaluations during the stay-at-home order. The evaluator may:

  1. Reschedule the evaluation until after the stay-at-home order is lifted.
  2. Perform an electronic interview followed by physical evaluation after the stay-at-home order is lifted.
  3. Perform an evaluations entirely via telehealth under specified conditions.

The emergency regulations do not preclude QMEs and AMEs from conducting in-person evaluations. In one case, the appeals board upheld an order allowing an applicant to attend evaluations with multiple QMEs during the COVID-19 pandemic. The applicant lived out of state, and the defendant asserted that the order was contrary to public policy and the CDC health guidelines, and that it would be exposed to unnecessary liability and harm should the applicant become infected with COVID-19. The appeals board explained that the applicant wanted to make the trip to California to have the medical-legal exams performed, and that he should determine whether the trip could be safely taken. It found that the physicians should make the decision as to whether they could safely conduct the exams, and there was no evidence that they were unable or unwilling to do so. The board also found that the governor's stay-at-home order did not apply to the applicant because he was not a California resident. Finally, the board found that the order had no time limit for the examinations and it allowed the parties to schedule the appointments at a future date of their choosing.[10]

Rescheduling the Evaluation

The emergency regulation allows a QME or AME to reschedule an appointment to a date within 90 days after the date that both the statewide stay-at-home order and any similar local order where the injured worker resides or the visit will occur, if applicable, are lifted.

Currently, CCR § 34(e) requires a QME who cancels a scheduled appointment to reschedule for a date within 30 calendar days of the date of cancellation. CCR § 34(f) requires an AME to reschedule a canceled appointment within 60 calendar days of the date of the cancellation unless the parties agree otherwise. These rules are discussed further in "Sullivan on Comp" Section 14.40 Appointments and Cancellations.

Because the current stay-at-home order is indefinite, it's not clear when a QME or AME will be able to evaluate an injured worker. The regulation prevents a party from using the COVID-19 pandemic as an excuse for a replacement panel.

Electronic Interview Followed by Face-to-Face Evaluation

The QME or AME may issue a record review and electronic interview summary report. The physician initially may interview the injured worker either by telephone or by any form of video conferencing and prepare a report. Once the statewide stay-at-home order and any similar local order where the visit will occur are lifted, the QME may schedule a face-to-face evaluation, provided the necessary precautions are taken. For a discussion on the face-to-face requirements for a medical-legal evaluation, see "Sullivan on Comp" Section 14.44 Evaluation Requirements and Rights.

For example, in one case, the appeals board denied a defendant's request for a replacement panel when the QME offered only a telemedicine appointment and could not schedule an in-person appointment based on a statewide and local stay-at-home order. The defendant requested a replacement panel, asserting that the QME was unable to schedule an examination within the 120-day period under CCR 46.2(b)(1). The board found, however, that CCR 46.2(a)(2) allowed the QME to interview the applicant by telephone or any form of video conferencing, then schedule a face-to-face evaluation once the statewide stay-at-home order and any similar local orders are lifted. It found that the QME was complying with a statewide and local stay-at-home order at the time the telemedicine appointment was scheduled in December 2020.[11]

If a QME or AME chooses this option, he or she must send appropriate notice and information necessary for the injured worker to make the telephone call or initiate the videoconferencing for the appointment. On receipt of the notice of an electronic interview, the parties must provide the evaluator with records at least 10 days before the scheduled appointment. For a discussion on the time limits for providing documents to a QME or AME, see "Sullivan on Comp" Section 14.41 Communications with Agreed Medical Examiner and Qualified Medical Evaluator.

This option enables a QME or AME to continue working and get paid during the stay-at-home order. It also helps the provider avoid a backlog of work after the stay-at-home order is lifted.

Telehealth Evaluation

In addition to the two options above, the emergency regulation establishes conditions under which a QME or AME may complete a medical-legal evaluation entirely through telehealth. The regulation defines telehealth as "remote visits via videoconferencing, video-calling, or similar technology that allows each party to see the other via a video connection." So performing a medical-legal evaluation with only an audio phone call would be insufficient.

A medical-legal evaluation without a physical examination may be performed if all of these conditions are met:

  1. The injured worker is not required to travel outside of his or her immediate household to undergo the telehealth evaluation.
  2. There is a medical issue in dispute that involves whether the injury is AOE/COE, or the physician is asked to address the termination of an injured worker’s indemnity benefit payments, or address a dispute regarding work restrictions.
  3. There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the evaluator.
  4. The telehealth visit under the circumstances is consistent with appropriate and ethical medical practice, as determined by the evaluator.
  5. The evaluator attests in writing that the evaluation does not require a physical exam.

So the regulation requires the parties and the physician to agree to a telehealth evaluation. But it's clear that agreement to such evaluation may not be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied, it 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, including an expedited hearing (see "Sullivan on Comp" Section 15.32 Expedited Hearing).

For example, in one case, the appeals board held that a defendant's denial of a panel QME evaluation via telehealth was unreasonable pursuant to emergency CCR 46.2. The applicant sustained a specific injury and claimed injury to multiple body parts, including internal injury. A QME in internal medicine was selected and he declared that he would conduct an evaluation via telehealth without a physical examination, but the defendant objected to the evaluation. The board concluded that the elements of CCR 46.2(a)(3) were met.[12]

It found that the applicant was not required to travel outside of his immediate household to accomplish the telehealth evaluation because the QME confirmed that he would conduct it via telemedicine. It found that although the defendant accepted injury to the low back, there was a medical dispute over whether the applicant's internal medical conditions were AOE/COE. It found that the QME confirmed he would conduct the telehealth evaluation without a physical examination and presumed that he would have advised the parties if he believed that a telehealth evaluation was inconsistent with appropriate and ethical medical practice. The board concluded that under the circumstances, the defendant unreasonably denied agreement to a telehealth evaluation per the emergency regulations.[13]

Suspension of Rules

California Code Regulations, Title 8, Section 46.2 also suspends a few rules regarding time limits for scheduling appointments and completing reports.

One, the regulation suspends CCR § 31.3(e) requiring a QME evaluation to be scheduled within 60 days of an appointment request. The regulation gives the scheduling party the option of accepting an appointment within 90 days of the request (see "Sullivan on Comp" Section 14.40 Appointment and Cancellation).

The regulation doesn't eliminate the time limit for scheduling an appointment, it just extends it. It requires a QME to schedule an evaluation within 90 days of the date of the appointment request, or allow the requesting party to accept an appointment that is no more than 120 days after the date of the party's initial appointment request.

Two, the regulation extends by 15 days all time periods specified in CCR 38. That regulation generally requires a QME to complete a report within 30 days of the evaluation (unless an extension is requested), and a supplemental report within 60 days of a request (see "Sullivan on Comp" Section 14.42 Timeliness Requirements). So, although the regulation is in effect, a QME would have at least 45 days to complete the initial report and 75 days for a supplemental report.

Three, the regulation suspends CCR 34(b), which requires the first examination to be conducted only at the office listed on the panel selection form. The regulation permits the examination to be conducted at any office listed with the medical director provided that the parties agree. Given that parties could always agree to an evaluation at a different office, this change is not significant.

On lifting or terminating Gov. Newsom’s Executive Order N-33-20, and when there is no longer a stay-at-home order in the jurisdiction where the injured worker resides or where the evaluation will occur, QME evaluations may take place under the provisions of the nonemergency QME regulations or via the emergency regulations while they are in effect.


See Also


References

  1. See https://covid19.ca.gov/stay-home-except-for-essential-needs/.
  2. See the DWC's Newsline of March 19, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-21.html.
  3. Oranje v. Crestwood Behavioral Health (2014) 2014 Cal. Wrk. Comp. P.D. LEXIS 602.
  4. The executive order is available at https://www.gov.ca.gov/wp-content/uploads/2020/04/4.3.20-EO-N-43-20-text.pdf.
  5. See the DWC's Newsline of April 13, 2020 at https://www.dir.ca.gov/DIRNews/2020/2020-31.html.
  6. See the DWC's Newsline of May 27, 2020 at https://www.dir.ca.gov/DIRNews/2020/2020-46.html.
  7. See the DWC's Newsline of March 28, 2020 containing the announcement at: https://www.dir.ca.gov/DIRNews/2020/2020-26.html.
  8. See the DWC's Newsline of Oct. 13, 2020 at: https://www.dir.ca.gov/DIRNews/2020/2020-90.html.
  9. See the DWC's Newsline of March 10, 2021 at https://www.dir.ca.gov/DIRNews/2021/2021-29.html.
  10. Harris v. Oakland Raiders, 2021 Cal. Wrk. Comp. P.D. LEXIS 17.
  11. Rojas v. Jackel Enterprises, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 175.
  12. Rosenbrook v. Knight-Swift Transportation Holdings, Inc. (2021) 86 CCC 440 (panel decision).
  13. Rosenbrook v. Knight-Swift Transportation Holdings, Inc. (2021) 86 CCC 440 (panel decision).



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