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Article 4. Evaluation Procedures
New Query

§41.6. Procedures After Notice of Conflict of Interest and Waivers of Conflicts of Interest of an Evaluator.

(a) Whenever an Agreed or Qualified Medical Evaluator notifies the parties that a disqualifying conflict of interest exists, and even if it arises after the evaluator has performed an initial or follow up comprehensive medical-legal evaluation, the parties shall use the following procedures.

(b) An evaluator shall proceed with any scheduled evaluation involving a physical examination or supplemental report in the case, unless either the evaluator declines to proceed due to disqualifying himself or herself pursuant to section 41.5(e) of Title 8 of the California Code of Regulations or unless, pursuant to this section, the injured worker or the claims administrator is entitled to a replacement QME.

(c) Within five (5) business days of receipt of the evaluator's notice of conflict:

  (1) If the injured worker is not represented by an attorney, the parties shall obtain a new evaluator by following the procedure provided under section 31.5 of Title 8 of the California Code of Regulations and a replacement QME, or when necessary replacement QME panel, shall be issued.  

  (2) If the injured worker is represented by an attorney, each party shall notify the evaluator and the opposing party in writing of the party's decision either to waive the conflict or to object to the evaluator on the basis of the evaluator's conflict. Whenever either party objects to the evaluator due to a conflict, the parties shall obtain a new evaluator by following the procedures provided in Labor Code section 4062.2 and section 31.5 of Title 8 of the California Code of Regulations.  

  (3) In the event the parties in a represented case wish to waive a conflict of interest, any such waiver shall be valid only if the general nature of the conflict of interest is disclosed in writing and on the same document, or duplicate copies of the same document, each party has signed a statement indicating that the signing party understands that the evaluator has a conflict of interest, the party understands the nature of the conflict, and the party wishes to waive the opportunity to obtain another evaluator. The signature of an attorney shall have the same effect as the signature of the party represented by the attorney, if a copy of the document signed by the attorney is served on the represented party by the attorney or by any other party or attorney. It shall be the duty of the attorney to serve a copy of the signed document on the party-client.  

(d) Any dispute over whether a conflict of interest of an evaluator may affect the integrity and impartiality of the evaluator with respect to an evaluation report or supplemental report, and any dispute over waiver of an evaluator's conflict under this section, shall be determined by a Workers' Compensation Administrative Law Judge.

     Note: Authority cited: Sections 133, 139.2(o) and 5307.3, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.1, 4062.2, 4064 and 4067, Labor Code.  

1. New section filed 1-13-2009; operative 2-17-2009 (Register 2009, No. 3).

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