Title 8. Industrial Relations
Division 1. Department of Industrial Relations
Chapter 1. Division of Workers' Compensation -- Qualified Medical Evaluator Regulations
Article 3. Assignment of Qualified Medical Evaluators, Evaluation Procedure

§35.5. Compliance by AMEs and QMEs with Administrative Director Evaluation and Reporting Guidelines.

(a) Each evaluation examination and report completed pursuant to Labor Code sections 4060, 4061, 4062, 4062.1, 4062.2, 4064, 4067 or 5703.5 shall be performed in compliance with all appropriate evaluation procedures pursuant to this Chapter.

(b) Each reporting evaluator shall state in the body of the comprehensive medical-legal report the date the examination was completed and the street address at which the examination was performed. If the evaluator signs the report on any date other than the date the examination was completed, the evaluator shall enter the date the report is signed next to or near the signature on the report.

(c)(1) The evaluator shall address all contested medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee's appointment with the medical evaluator that are issues within the evaluator's scope of practice and areas of clinical competence. The reporting evaluator shall attempt to address each question raised by each party in the issue cover letter sent to the evaluator as provided in subdivision 35(a)(3).

(2) If the evaluator declares the injured worker permanent and stationary for the body part evaluated and the evaluator finds injury has caused permanent partial disability, the evaluator shall complete the Physician's Report of Permanent and Stationary Status and Work Capacity (DWC-AD Form 10133.36) and serve it on the claims administrator together with the medical report.

(d) At the evaluator's earliest opportunity and no later than the date the report is served, the evaluator shall advise the parties in writing of any disputed medical issues outside of the evaluator's scope of practice and area of clinical competency in order that the parties may initiate the process for obtaining an additional evaluation pursuant to section 4062.1 or 4062.2 of the Labor Code and these regulations in another specialty. In the case of a panel QME, the evaluator shall send a copy of the written notification provided to the parties to the Medical Director at the same time. However, only a party's request for an additional panel, with the evaluator's written notice under this section attached, or an order by a Workers' Compensation Administrative Law Judge, will be acted upon by the Medical Director to issue a new QME panel in another specialty in the claim.

(e) In the event a new injury or illness is claimed involving the same type of body part or body system and the parties are the same, or in the event either party objects to any new medical issue within the evaluator's scope of practice and clinical competence, the parties shall utilize to the extent possible the same evaluator who reported previously.

(f) Unless the Appeals Board or a Workers' Compensation Administrative Law Judge orders otherwise or the parties agree otherwise, whenever a party is legally entitled to depose the evaluator, the evaluator shall make himself or herself available for deposition within at least one hundred twenty (120) days of the notice of deposition and, upon the request of the unrepresented injured worker and whenever consistent with Labor Code section 5710, the deposition shall be held at the location at which the evaluation examination was performed, or at a facility or office chosen by the deposing party that is not more than 20 miles from the location of the evaluation examination.

(g)(1) Where the evaluation is performed for injuries that occurred before January 1, 2013, concerning a dispute over a utilization review decision if the decision is communicated to the requesting physician on or before June 30, 2013, whenever an Agreed Medical Evaluator or Qualified Medical Evaluator provides an opinion in a comprehensive medical/legal report on a disputed medical treatment issue, the evaluator's opinion shall be consistent with and apply the standards of evidence-based medicine set out in Division 1, Chapter 4.5, Subchapter 1, sections 9792.20 et seq of Title 8 of the California Code of Regulations (Medical Treatment Utilization Schedule). In the event the disputed medical treatment, condition or injury is not addressed by the Medical Treatment Utilization Schedule, the evaluator's medical opinion shall be consistent with and refer to other evidence-based medical treatment guidelines, peer reviewed studies and articles, if any, and otherwise shall explain the medical basis for the evaluator's reasoning and conclusions.

(2) For any evaluation performed on or after July 1, 2013, and regardless of the date of injury, an Agreed Medical Evaluator or Qualified Medical Evaluator shall not provide an opinion on any disputed medical treatment issue, but shall provide an opinion about whether the injured worker will need future medical care to cure or relieve the effects of an industrial injury.

(h) Each reporting evaluator shall include in the report a declaration under penalty of perjury that the evaluator did not discriminate in any way against the parties to the action or the injured worker in the evaluation process or in the content of the report.

Note: Authority cited: Sections 133, 139.2, 4062.3 and 5307.3, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.1, 4062.2, 4064, 4067, 4604.5, 4610.5, 4628, 5703.5, 5307.27 and 5710, Labor Code.

History

1. New section filed 4-14-2000; operative 5-14-2000 (Register 2000, No. 15).

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

3. Redesignation of former subsection (c) as subsection (c)(1), new subsection (c)(2), redesignation and amendment of former subsection (g) as new subsection (g)(1), new subsection (g)(2) and amendment of Note filed 12-31-2012 as an emergency; operative 1-1-2013 pursuant to Government Code section 11346.1(d) (Register 2013, No. 1). A Certificate of Compliance must be transmitted to OAL by 7-1-2013 or emergency language will be repealed by operation of law on the following day.

4. Redesignation of former subsection (c) as subsection (c)(1), new subsection (c)(2), redesignation and amendment of former subsection (g) as new subsection (g)(1), new subsection (g)(2) and amendment of Note refiled 7-1-2013 as an emergency; operative 7-1-2013 (Register 2013, No. 27). A Certificate of Compliance must be transmitted to OAL by 9-30-2013 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 7-1-2013 order, including amendment of subsections (c)(2) and (g)(1)-(2), transmitted to OAL 8-2-2013 and filed 9-16-2013; amendments operative 9-16-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 38).

6. Amendment of subsection (d) and new subsection (h) filed 2-26-2024; operative 2-26-2024 pursuant to Government Code section 11343.4(b)(3) (Register 2024, No. 9).