TITLE 8. INDUSTRIAL RELATIONS
DIVISION 1. DEPARTMENT OF INDUSTRIAL RELATIONS
CHAPTER 1. DIVISION OF WORKERS' COMPENSATION-QUALIFIED MEDICAL EVALUATOR

Article 4. Evaluation Procedures

§41. Ethical Requirements.

(a) All QMEs, regardless of whether the injured worker is represented by an attorney, shall:

(1) Maintain a clean, professional physician's office (as defined in section 1(y) at all times which shall contain functioning medical instruments and equipment appropriate to conducting the evaluation within the physician's scope of practice and a functioning business office phone with the phone number listed with the Medical Director for that location which a party may use to schedule an examination or to handle other matters related to a comprehensive medical/legal evaluation.

(2) Schedule all appointments for comprehensive medical-legal evaluations without regard to whether a worker is unrepresented or represented by an attorney. A QME shall not refuse to schedule an appointment with an injured worker solely because the worker is not represented by an attorney or because a promise to reimburse or reimbursement is not made prior to the evaluation.

(3) Not request the employee to submit to an unnecessary exam or procedure.

(4) Refrain from treating or soliciting to provide medical treatment, medical supplies or medical devices to the injured worker.

(5) Communicate with the injured worker in a respectful, courteous and professional manner.

(6) Refrain from violating section 41.5 of Title 8 of the California Code of Regulations.

(7) Refrain from unilaterally rescheduling a panel QME examination more than two times in the same case.

(8) Refrain from cancelling a QME examination less than six (6) business days from the date the exam is scheduled without good cause and without providing a new examination date within thirty (30) calendar days of the date of cancellation.

(b) Evaluators selected from a QME panel provided by the Administrative Director shall not engage in ex parte communication in violation of Labor Code section 4062.3.

(c) All QMEs, regardless of whether the injured worker is represented by an attorney, shall with respect to his or her comprehensive medical-legal evaluation:

(1) Refuse any compensation from any source contingent upon writing an opinion that in any way could be construed as unfavorable to a party to the case.

(2) Review all available relevant medical and non-medical records and/or facts necessary for an accurate and objective assessment of the contested medical issues in an injured worker's case before generating a written report. The report must list and summarize all medical and non-medical records reviewed as part of the evaluation.

(3) Render expert opinions or conclusions without regard to an injured worker's race, sex, national origin, religion or sexual preference.

(4) Render expert opinions or conclusions only on issues which the evaluator has adequate qualifications, education, and training. All conclusions shall be based on the facts and on the evaluator's training and specialty-based knowledge and shall be without bias either for or against the injured worker or the claims administrator, or if none the employer.

(5) Present a report that addresses all relevant and contested medical issues as presented on one or more claim forms, is ratable by the DEU, if applicable, and complies with all relevant guidelines of the Administrative Director.

(6) Date the report on the date it is completed and ready for signature and service on the parties. No report shall be dated on the date of the evaluation examination unless the full written text of the report is completed and ready for signature and service on that same date.

(7) Write all portions of the report that contain discussion of medical issues, medical research used as the basis for medical determinations, and medical conclusions made by the evaluator. In the event more than one evaluator signs a single report, each signing physician shall clearly state those parts of the employee evaluation examination performed and the portions of the report discussion and conclusion drafted by the signing evaluator. Where a consultation report is obtained by an evaluator from a physician in a different specialty, the consultation report shall be incorporated by reference into the final report and appended to the referring QME's report.

(8) Serve the report as provided in these regulations at the same time on the employee and the claims administrator, or if none the employer, and on each of their attorneys, respectively.

(d) All aspects of all physical and/or psychological comprehensive medical-legal evaluations, including history taking, shall be directly related to contested medical issues as presented by any party or addressed in the reports of treating physician(s). No evaluator shall engage in any physical contact with the injured worker which is unnecessary to complete the examination.

(e) No physician certified by the Administrative Director as a QME, or his or her agent, shall contact an evaluator for the purpose of influencing that evaluator's opinions or conclusions in any comprehensive medical-legal evaluation or report.

(f) No evaluator shall schedule appointments to the extent that any injured worker will be required to wait for more than one hour at the evaluator's office prior to being seen for the previously agreed upon appointment time for an evaluation. An injured worker who is not seen by the evaluator within one hour may terminate the exam and request a replacement evaluator from the Administrative Director. No party shall be liable for the terminated exam. The evaluator may explain any reasons for the delay to the injured worker and, provided both parties agree, the evaluation may proceed or be rescheduled for a later date. If the evaluation is rescheduled, the evaluator shall provide notice of the new date of the evaluation to the parties within 5 business days after rescheduling the appointment.

(g) If the injured worker terminates the examination process based on an alleged violation of section 35(k), 40, 41(a) or 41.5 of Title 8 of the California Code of Regulations, and the Appeals Board later determines that good cause did not exist for the termination, the cost of the evaluation shall be deducted from the injured worker's award. A violation of section 40 or of any part of section 41(a) or 41.5 by the evaluator shall constitute good cause for purposes of an Appeals Board determination. No party shall be liable for any cost for medical reports or medical services delivered as a result of an exam terminated for good cause.

(h) Nothing in this section shall require an evaluator to undertake or continue a comprehensive medical-legal evaluation where the injured worker or his/her representative uses abusive language towards the evaluator or evaluator's staff or deliberately attempts to disrupt the operation of the evaluator's office in any way. The evaluator shall state under penalty of perjury, the facts supporting the termination of the evaluation process. Upon request, the Medical Director shall investigate the facts and make a final determination of the issue(s).

(i) Nothing in this section shall require an evaluator selected from a panel to undertake or continue a comprehensive medical-legal evaluation where the injured worker is intoxicated or under the influence of any medication which impairs the injured worker's ability to participate in the evaluation process. The evaluator shall state under penalty of perjury, the facts supporting the termination of the evaluation process. Upon request, the Medical Director shall investigate the facts and make a final determination of the issue(s).

   Note: Authority cited: Sections 133, 139.2, 5307.3 and 5307.6, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.1, 4062.2, 4062.3, 4062.5, 4067 and 4628, Labor Code.

 HISTORY 

   

1. New section filed 4-11-95; operative 5-11-95 (Register 95, No. 15).

2. New subsection (b), subsection relettering, and amendment of redesignated subsection (b)(1) filed 7-18-95 as an emergency; operative 7-18-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-15-95 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 7-18-95 order including amendment of subsection (b), deletion of subsection (b)(1) designator, and amendment of Notetransmitted to OAL 11-14-95 and filed 12-21-95 (Register 95, No. 51).

4. Amendment filed 4-14-2000; operative 5-14-2000 (Register 2000, No. 15).

5. Amendment of section and Note filed 1-13-2009; operative 2-17-2009 (Register 2009, No. 3).