2009 will not be the “year of reform” – whether in California workers’ comp or anything else. Unless and until the Legislature gets its fiscal house in order, a more monumental task than anyone outside the Legislative Analyst’s Office (LAO) realizes, Sacramento will not have the appetite or ear for anything of substance. Furthermore, as we and others have repeatedly said, we are on the clock for the Schwarzenegger administration. Its legacy issue, workers’ comp reform, and labor’s sense that any deal had today will be far less than what can be gained in 2011, leave changes to the system perilously close to sliding off the table.
But recently, the Division of Workers’ Compensation (DWC), in its unceasing effort to use every scrap of paper in California for publishing rules, updated and significantly improved regulations governing training and report-writing requirements for agreed and qualified medical evaluators (AMEs and QMEs).
This process also renewed the debate over delays in scheduling appointments with AMEs. An agreed medical evaluator is not subject to all the same requirements as a qualified medical evaluator for the simple reason that the law looks at an AME as someone both parties agree to, so there shouldn’t be any issues with his or her qualifications, opinions or timeliness in setting appointments.
On the other hand, QMEs are required to schedule an appointment within 60 days of the request. Why is this so important? Beyond the frustration level of putting a claim on hold for as long as six months waiting for an evaluation, the injured worker is seeing his or her 104 weeks of temporary disability evaporate with no clear path toward getting back to work, or even getting to permanent and stationary status before the TD runs out. Sort of adds insult to injury, doesn’t it?
Nothing good ever comes from delay in the system, and in the case of lengthy delays in the AME appointment process, many bad things do indeed occur.
The other distinguishing factor between AMEs and QMEs is that only an injured worker represented by an attorney can get an AME. Thus, the worker is allowed to languish because of a decision he or she cannot control – the decision to agree to an evaluation by a specific doctor months into the future.
You probably have already figured out where this is heading. If a claims payer and an attorney agree to an evaluator (AME), then the running of 104 weeks of temporary disability payments should be tolled for the period between 60 days after the request is made until the appointment actually takes place. If the claims payer feels that the evaluation by the AME is so important, and if the AME is truly better in adherence to the medical treatment utilization schedule and AMA Guides, then the injured worker should not be faced with the possibility of running out of TD before he or she is permanent and stationary. AMEs should be able to schedule an appointment in the same timeframes as QMEs, but for some, apparently, the demand is so high that it takes upward of six months to get the evaluation. So be it, but why should the injured worker run the risk of financial ruin because of a decision made by an attorney and a claims examiner?
Just saying “no” to an AME is simultaneously simple and impractical. Until the substantive provisions on report writing and adherence to the medical treatment utilization schedule and AMA Guides contained in the new regulations work their way down to the QMEs, going to a panel isn’t necessarily the preferred option. The key is getting a quality evaluation in a reasonable time. If it takes longer to get the quality, then the injured worker shouldn’t have to suffer.
If, on the other hand, claims payers decide that the added TD cost isn’t worth the report, well, then maybe those AMEs just might find a way to free up some time on their schedules.