In 2016, the Division of Workers’ Compensation allowed for the first time, a disability evaluation to be performed through telemedicine. Telemedicine is a process in which the evaluation is conducted through a separate audio, video or data transmission between the doctor and the patient as opposed to being face to face. While the use of telemedicine itself may have benefit in the practice of medicine, it is somewhat controversial in the performance of a medical legal examination which essentially requires an evaluator to take objective measurements and observations during the course of that examination.
The use of medical legal examinations through telemedicine may be in dispute by both applicant’s and defendant’s alike, but with the DWC approving its use at least in limited circumstances, you may receive a panel with a physician designated to be performed in this fashion. What options are you left with? For an unrepresented case, the applicant has right of first choice and could elect the physician. For represented cases, the option to strike that physician is available, but this may leave you a physician that is less desired solely to eliminate a questionable process as opposed to making a strike on the merits. Is there an option to replace the panel entirely anytime this option is presented?
I believe the answer to that questions is yes. Although the DWC has authorized its use, the Labor Code and California Code of Regulations still lists requirements for the medical legal examination that may not be satisfied by way of a telemedicine exam. Title 8 CCR sections 49.2-49.9 regulate specific time that is required as part of the evaluation process. Neuromuscular evaluations require a minimum of 20 minutes face to face time. Cardiovascular and pulmonary exams require a minimum of 30 minutes. Psychiatric examinations require a minimum of one hour while any examination not noted above has a 30 minute face to face time requirement. Face to Face time is defined in CCR section 49 as “[O]nly that time the evaluator is present with an injured worker. This includes the time in which the evaluator performs such tasks as taking a history, performing a physical examination or discussing the worker’s medical condition with the worker. Face to face time excludes time spent on research, records review and report writing. Any time spent by the injured worker with clinical or clerical staff who perform diagnostic or laboratory tests (including blood tests or x-rays) or time spent by the injured worker in a waiting room or other area outside the evaluation room is not included in face to face time.” Does a telemedicine examination violate regulations requiring face to face time with the medical legal evaluator? Taking a history of the patient over a video or audio connection may still satisfy the requirement, but it is inherent in the definition that a physical examination is part of the process. An inability by the physician to perform the physical part of that examination appears to violate that standard.
Further, Labor Code section 4628(a) states “no person other than the physician who signs the medical legal report . . . shall examine the injured employee . . . or participate in non-clerical preparation of the report including taking a medical history, reviewing and summarizing prior medical records and composing or drafting the conclusions of the report.” The use of telemedicine to date as part of the QME process has required the use of a second qualified individual to be present to perform measurements, physical tests and observations that are generally part of the physical examination performed by the physician selected. Thus, the telemedicine process in and of itself appears to violate current legal requirements.
In Gonzalez v. ABM Industries 2016 Cal.Wrk.Comp PD Lexis, the WCAB denied a request for removal of a decision by the WCALJ to allow a replacement panel when the examination was performed by way of telemedicine. In that case, the physician utilized an unidentified chiropractic specialist to perform the examination while he was available electronically. In this case, the defendant was the party objecting to the replacement panel, likely in part due to the fact they would be responsible for payment of a second evaluation.
There may be some uncertainty as to whether the parties would have to participate in the examination itself before issuing an objection based on the legal grounds noted above, but without a procedure established satisfying legal requirements, that challenge should be available at any time. An objection pre-examination may be allowed if the doctor fails to show the examination itself will satisfy legal requirements.
A question remains as to why the DWC has allowed a process which appears to violate legal standards and whether this signifies an intention to shift to less rigorous standards in conducting evaluations in the future. For now, the Gonzalez decision appears to afford a current ability to contest any panel received in which the examination is designated through telemedicine.