Workers Comp Zone

RETHINKING THE KITCHEN SINK STRATEGY

Will the newly unveiled amended Medical-Legal Fee Schedule regulations result in a change in California workers’ comp culture?

The proposed regs, likely to be officially adopted for use in April 2021, contain measures that have the potential to change how cases are often handled.

The new California Medical-Legal Fee schedule (we’ll call it the MLFS) substitutes a flat fee based system for the current hourly based system that has complexity modifiers. Under the new rules, QME compensation for record reviews under 201 pages is built into the flat fee for a comprehensive evaluation. But for an initial QME evaluation, review of any records in excess of 200 pages are billable at $3 a page.

Those per page charges can really mount up if bankers boxes of records are submitted to the QME.

Unfortunately, over the years I’ve noted too much “throw it against the wall and see if it sticks” workers’ comp defense strategy.

Sometimes this begins with depositions which are lengthy probes into ancient work histories, minor prior workers’ comp claims, and decades old motor vehicle accidents. A worker may have been successfully employed with the defendant for 30 years, but some defense attorneys will chase down huge volumes of old medical news. Hoping to find something that will justify apportionment, many defense attorneys tilt at windmills. The “kitchen sink” is sent to the QME, hoping he/she will find something to justify apportionment.

At $3 per page, this injudicious strategy may not be cost effective in many cases.

Other changes to the practice may be coming due to two components of the new MLFS. One is the requirement of a declaration of Labor Code 4062.3 compliance. The other is a page attestation requirement.

 Amended MLFS Reg 9793(n) will require that:

“Any documents sent to the physician for record review must be accompanied by declaration under penalty of perjury that the provider of the documents has complied with provisions of Labor Code section 4062.3 before providing the documents to the physician.”

Labor Code section 4062.3 (b) and Reg 35 require that information (including medical and non-medical records) proposed to be served on the QME be served on the opposing party 20 days before the information is provided to the evaluator. 

So under the amended MLFS, if there is no declaration of LC 4062.3 compliance, a physician need not review the submitted records.  Reg 9793(n) provides that “A physician may not bill for review of documents that are not provided with this accompanying required declaration from the document provider.”

Historically, too many claims examiners and attorneys have played fast and loose with the requirements of LC 4062(b), submitting records to the QME at the same time they are served on the opposing party. Reg 9793(n) will likely put the kibosh on that.

If a party has not complied with the 20 day time requirement for service of records on the other party and is therefore unable to make the required declaration under Reg 9793(n) before the initial QME evaluation, the party may need to comply with Reg 9793(n) and then seek a supplemental report. The QME fee for supplemental reports includes 50 pages of record reviews, but record reviews after the first 50 pages will be billable at $3 per page.

Amended MLFS Reg 9793(n) will also require an attestation from the party submitting the records, mandating that:

 “The declaration must also contain an attestation as to the total page count of the documents provided”.

Failure to include the attestation and declaration means the documents or records sent “shall not be considered available to the physician or received by the physician”.

These changes make it less likely that parties will be able to sandbag each other by doing last minute discovery and submitting records to which the other party has not had a chance to review and object. 

Since most of the records sent to QMEs are from claims examiners and defense attorneys, these amended reg provisions will place additional requirements on them that may discourage abusive practices. Coupled with the cost of $3 per page QME reviews, it may give some payors pause as to whether they want a “throw it against the wall and see if it sticks” defense strategy.

As noted by the DWC in response to forum comments:

     “The requirement to pay $3 per page for record review should incentivize carriers and attorneys to carefully select and count the records that are provided to the physician.”

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/

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