On October 4, 2021, California’s Division of Workers’ Compensation (DWC) announced that emergency regulations §§ 36.7 and 46.2 have been extended through January 11, 2022. Below is a summary of what the emergency regulations provide. This extension is in accordance with California Governor Gavin Newsom’s Executive Orders N-40-20 and N-71-20, and is the final extension of these regulations in response to the ongoing COVID-19 epidemic, per Government Code section 11346.1(h). The regulations were first extended in March of 2021, and any further extension would require a new passage of the emergency measures.
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§ 36.7
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Allows QME and AME reports to be served electronically where the parties agree to such service.
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Electronic service is not permitted on any unrepresented party or unrepresented injured worker.
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§ 46.2 |
(a)
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QME or AME may reschedule a currently calendared in-person appointment to take place within 90 days after the state-wide stay at home order is lifted.
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Or
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QME or AME may provide a record review and perform a telephone or video interview and perform face-to-face after stay at home order is lifted.
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QME or AME may complete a med-legal evaluation through telehealth when physical examination is not necessary and conditions described in regulation are met.
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(b)
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If party with legal right to schedule appointment with QME is unable to obtain appointment within 90 days, that party may waive right to replacement and accept an appointment that is no more than 120 days.
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If the QME is unable to schedule within 120 days, either party may request a replacement or both may agree to waive 120 day limit.
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(c)
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All time periods in Section 38 are extended by 15 days. This includes:
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– Initial or follow-up evaluation report is extended from 30 to 45 days
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– 30 day extension for test results or report of consulting physician is now 45 days.
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– 60 days for supplemental reports is extended to 75 days.
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– Section 34(b) requiring med-legal exam at only the med office listed on the panel selection form is suspended and first med-legal exam can be conducted at any medical office listed on the panel form or any office listed with the Med Director by agreement of parties. Subsequent evals may be performed at another office of the QME if listed with Med Director and is reasonable distance. |
As previously noted, these regulations allow the med-legal process to continue during the ongoing health crisis. The regulations address how medical-legal evaluations may proceed during the pandemic, and provide alternative means for service of required forms related to medical-legal evaluations and reports.
WHAT DOES THIS MEAN FOR YOU: These emergency regulations have allowed the med-legal process to continue through telemedicine rather than in-person evaluations in some circumstances. They also provide the med-legal evaluators with more time to set evaluations and produce reports. In some circumstances, it would appear that the parties can waive the request for an in-person evaluation. This might be particularly applicable in psychology or psychiatry evaluations where presumably no physical examination would be needed. However, there is a potential for increased litigation over the issue of what constitutes an unreasonable denial of an agreement to proceed with a telehealth evaluation. If there is such a denial, a DOR could be filed for a hearing on the issue. Read our summary (link to web post) and the text of the regulations. As always, if you have any questions about what these updates may mean for you and your claims, contact our offices.
The full text of the rules can be found here. SRTK will continue to monitor this development and provide updates as available. Please contact our offices with any questions.