California Employment Law
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Hi, Beth. Thank you for using JA. My name is XXXXX XXXXX I am a practicing CA employment law attorney. My goal is to give you legal information and insight into your situation. Please bear in mind that the law is often unfair, but I have a duty to give you an accurate answer even when the law does not support a preferred position. Be assured, however, that I will do my best to explore any potentially favorable legal theory.
With that said, I read through your facts and I am really sorry about everything that you have experienced and endured. I must first tell you that since you are currently represented in this matter by an attorney, it would be an ethical violation for another attorney to advise you on the case, analyze your attorney's handling of the matter, and/or opine on why your attorney agreed to the WC case administrator's request to have you medically evaluated by an orthopedist [instead of a psychiatrist or a psychologist] for this second workplace injury given that the damage caused by the explosion was primarily psychological, not orthopedic. What I can do is recite CA Workers Compensation law, and urge you to candidly discuss relevant provisions with your attorney, who has a fiduciary duty to advocate on behalf of your legal interests. If you click on the following link, you will go to the CA Department of Industrial Relation Workers Compensation Division, which has neat blue hyperlinks to the QME process, QME complaints, etc., on the left side of the page:
Q. What is a QME?
A. A qualified medical evaluator (QME) is a physician who evaluates you when there are questions about what benefits you should receive. A physician must meet educational and licensing requirements to qualify as a QME. They must also pass a test and participate in ongoing education on the workers' compensation evaluation process. If you have an attorney, you and your claims administrator might agree on a doctor to resolve medical disputes. This doctor is called an agreed medical evaluator (AME). An AME or a panel QME will be used to resolve medical disputes in your workers' compensation case.Q. What is the difference between an AME and a QME? A. If you have an attorney, your attorney and the claims administrator may agree on a doctor without going through the state system used to pick a QME. The doctor your attorney and the claims administrator agree on is called an agreed medical evaluator (AME). A QME is picked from a list of state-certified doctors issued by the DWC Medical Unit. QME lists are generated randomly. An AME can only be used if you are represented by an attorney. Once you see an AME you are not entitled to see a QME. An AME may be used regardless of the year of injury. An AME physician may be a QME, but does not have to be one.
Q. What is a panel QME?
A. In this context, the word panel means a list. A panel QME is a randomly generated list of three QME physicians issued to you when there is a question about whether or not your injury is work related, or if there is a medical dispute that hasn't been resolved by the treating physician's report. Whoever fills out the form to request the panel QME chooses the specialty of the doctors on the panel.
Q. Who completes the panel request form?
A. You will receive the panel request form from the claims administrator and are given the first chance to fill out and submit the form. If you do not submit the form within 10 days, the claims administrator will do it for you and will get to choose the specialty of the QME you'll see. (Title 8, California Code of Regulations, section 30, Labor Code sections 139.2(h), 4061(d), 4062(b))
Q. I have two different problems from the same injury (for instance, a psychiatric and an orthopedic problem). May I request two panels, one psychiatric and one orthopedic?
A. The basic rule is that you get one. The claims administrator is only required to pay for one QME evaluation. The selected QME can get a consultation from another physician if there is a need for input from more than one medical specialty.
However, there are some circumstances where a workers' compensation administrative law judge, the Division of Workers' Compensation's executive medical director or a state information & assistance officer may request an additional panel. In those cases, a panel will be provided.(Title 8, California Code of Regulations, section 32 (c), Labor Code sections 5703.5(a), 5703.5(b), 4063.3(i))
Q. I need another evaluation. Should the original QME do it? What if that physician is no longer performing QME evaluations?
A. The second evaluation should be done by the same QME. The exceptions to this rule are: -The physician is no longer available -The physician became the treating physician after performing the QME evaluation-A workers' compensation administrative law judge decides you should have a new evaluation with a different QME.
If any exception applies, you may begin the QME request process again and you will receive a new panel.(Labor Code sections 4062.3(j); 4062.3)
Q. How should I complain about a QME?
A. Complaints should either be put in writing and sent to the DWC Medical Unit (Attn: Complaint Unit) P.O. Box 420603, San Francisco, CA 94142, or you can make an anonymous complaint by calling the Medical Unit's hotline at 1-800-999-1041. The Medical Unit prefers to have your name and address or phone number so that it can reach you if there are questions.Q. The QME did not issue the report and it's been over two months. What recourse do I have?
A. First, the Medical Unit will check to see if the QME requested an extension. If an extension was not requested or if the extension requested was denied, you can continue to wait for the QME report to be issued if you wish. If you don't want to wait, the Medical Unit will issue a new panel. In this case, either the claims administrator or you should contact the original QME and tell him not to issue his report as his bill will not be paid. (Title 8, California Code of Regulations, sections 38, 60 (b) (4), Labor Code section 4062.5)
Q. The QME has not issued the requested supplemental report and it's been over three months. What recourse do I have?
A. The QME should issue the supplemental report within 60 days. Contact the DWC Medical Unit, your attorney or a DWC information & assistance officer for help.
What can I do if the QME did not address all my medical issues?
A. If you don't have an attorney and the DEU summary rating has not been issued, you may write to the QME and ask that he/she issue a supplemental report. Remember that 20 days prior to sending the letter to the QME, you must send a copy to the claims administrator.
If a summary rating has already been issued, you have 30 days to file a "Request for Reconsideration of the Summary Rating," (DEU form 103) asking that the QME issue a supplemental report. Another option is to contact a DWC information & assistance officer and ask for help resolving the problem. (Title 8, California Code of Regulations, sections 10164 and 10160, 35, Labor Code section 4062.2 (e, f))
Q. I disagree with the QME's opinion on my permanent disability and my ability to perform the job. What recourse do I have?
A. If your primary treating physician and the QME have differing opinions on your permanent disability and ability to perform your job, and if you agree with the treating physician's report, while the claims administrator agrees with the QME report, you may either negotiate a compromise with the claims administrator or contact a DWC information & assistance officer to discuss your options.(Labor Code sections 4061(d), 4062(a), 4062.9, 4064)
Q. Who do I contact if I disagree with the permanent disability rating?
A. If either you or the claims administrator disagrees with the DEU summary rating, the "Request for Reconsideration of the Summary Rating" must be sent to the DWC administrative director using DEU form 103 within 30 days. There are only four reasons to request reconsideration of the summary rating:
-The QME failed to address all issues -The QME failed to completely address all issues-The DWC Medical Unit's procedures were not followed by the QME-The rating was incorrectly calculated.
If it has been over 30 days since the rating was issued or if the reason you disagree with the rating does not fall into one of the four categories above, contact a DWC information & assistance officer to discuss your options.(Title 8, California Code of Regulations, sections 10164)
Q. I (or the claims administrator) believe, based on the QME's report, that the QME needs to consult with a physician in another specialty but the QME disagrees. What recourse do I have?
A. If either you or the claims administrator think the QME has not consulted with a physician whose expertise is necessary for a complete and accurate evaluation, you may write to the DWC Medical Unit and request that the DWC Medical Unit direct the evaluator to consult with a physician in an appropriate specialty.
In sum, this is the law that is relevant to your situation. Please discuss these provisions with your attorney, because the good news here is that there is favorable recourse for you. I sure hope this has helped provide you with some perspective.
I sincerely XXXXX XXXXX the best in 2012 and beyond. If you have a follow up for me, please click reply to expert.
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Thanks for the additional details, Beth. I understand what you are saying, however the distinction is really only semantical, meaning that you are able to demand another orthopedic AME. I re-read your facts, and I do not see why your emotional condition on the day of your orthopedic examination should have anything to do with an orthopedic injury. There is absolutely no reason for an orthopedist to opine on your emotional condition. Your facts seem to say that becasue you were so upset at the appointment, the orthopedic evaluator submitted a report containing facts that color your physical injury with a psychological injury. This is HIGHLY improper. If I may be candid with you, I do not understand what your attorney is at a loss with here, because if the orthopedist exceeded the scope of his/her discipline by submitting a report about your emotional/psychological condition, that is basis all by itself to throw out the report and have a new one. A QME/AME is only allowed to evaluate a specific injury, in this case the subject of an orthopedist's evaluation MUST be limited to your orthopedic injury. Clearly, the WC insurer/case administrator is using this report to force you out of a job, and I simply do not understand why that is not being stopped. I cannot say anymore about your attorney, except that you must discuss this with him or her immediatley, and demand to know why the report is not being thrown out since the orthopedist exceeded his or her disciplinary scope.
The upshot of CA WC is that you are not categorically limited to one QME/AME. If you are being railroaded out of a job for the wrong reasons, and those wrong reasons turn exclusively on a what sounds to me like a bogus QME report, then you are entitled to have another examination, with another, supplemental report, since the first report is disputed. This happens more than you might think, and often the workers comp process involves multiple QME's/AME's.
BotXXXXX XXXXXne: you cannot be removed from your position based on one bogus medical examination. As the law that indicates in my former answer, there are multiple options here, including another evaluation, dispute of the results, etc. This is something you must discuss with your attorney, and if the answer is not what you want to hear in that it does nothing to protect the rights discussed above, then you may need to find new representation. What happens in your WC case will be very important, because it could give rise to a potential lawsuit against your employer down the road, if you are terminated in violation of your union's memorandum of understanding/collective bargaining agreement.
In short, for now you must bring the law to your lawyer and demand to know what is appropriate in your case, based on the reasons being given by your employer. If all this is about a QME/AME report, you have at least three options for recourse as set forth pursuant to the WC recited in my response above. You can demand another evaluation, you can make a complaint/dispute of the first AME report to the WCJ, and you can have your primary care submit an opinion, if it differs from the problem report. There are other things that can be done, but again, this is something you must take to your attorney, since you are represented. If you are not happy with your representation, you might consider retaining a more aggressive attorney immediately.
It has been my pleasure to assist you, and I sincerely XXXXX XXXXX the best in this matter and beyond.
***I ask that you please rate me positively, because that is the only way for me to receive any credit for my work. Thanks and take care.
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