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

§36.5. Service of Comprehensive Medical/Legal Report in Claims of Injury to the Psyche.

(a) For any evaluation involving a claimed or disputed injury to the psyche, the injured worker shall be advised by the evaluator that the employee's copy of the comprehensive medical-legal report, and any follow up or supplemental reports, from the evaluation may be served either directly on the injured worker or instead on a physician designated in writing by the injured worker prior to leaving the evaluator's office, for the purpose of reviewing and discussing the evaluation report with the injured worker. The evaluator shall explain that the designated physician may be but need not be the injured worker's primary treating physician in the workers' compensation claim and that the employer will be responsible for payment for one office visit with the designated physician for this purpose.

(b) Whenever injury to the psyche is claimed and in the course of the evaluation, the evaluator makes a determination pursuant to Health and Safety Code section 123115(b) that there is a substantial risk of significant adverse or detrimental medical consequences to the injured worker from seeing or receiving a copy of part or all of evaluation report which is a mental health record, the evaluator shall do all of the following:

(1) Complete QME Form 121 (Declaration Regarding Protection of Mental Health Record);

(2) Advise the injured worker that the determination under Health and Safety Code 123115(b) has been made regarding the evaluation report as a mental health record and that the evaluator only may serve the injured worker's copy of the evaluation report on a person who is a licensed physician, as defined in Labor Code section 3209.3, whose name the injured worker may designate in writing prior to leaving the evaluator's office, or on the employee's attorney, if any;

(3) Permit inspection and copying of the mental health record(s) subject to the Health and Safety Code section 123115(b) determination, only by a licensed physician as defined in Labor Code section 3209.3 or another health care provider as defined in Health and Safety Code section 123105(a);

(4) Complete the QME Form 121 and enter the name and address of the physician designated in writing by the injured worker on this form;

(5) Attach a completed copy of QME Form 121 (Declaration Regarding Protection of Mental Health Record) to the copy of the evaluation report in the injured worker's medical or medical-legal file;

(6) Serve the completed comprehensive medical-legal evaluation report, follow-up medical-legal report or supplemental medical-legal report(s) subject to the provisions of this section, with the completed QME Form 121 (Declaration Regarding Protection of Mental Health Record) attached, on the licensed physician designated by the injured worker on QME Form 121, and on the claims administrator, and on each party's attorney, if any, as provided in section 36, and within the time periods in section 38, of Title 8 of the California Code of Regulations. In the event the injured worker designates a physician on QME Form 121 other than the current primary treating physician in his or her workers' compensation claim, the evaluator shall also serve a copy of the report with the QME Form 121 attached on the primary treating physician;

(7) Whenever the report addresses any permanent impairment, permanent disability or apportionment and the injured worker is not represented by an attorney, a copy of the report with the completed QME Form 121 attached shall also be served on the appropriate office of the Disability Evaluation Unit, along with the QME Form 111 (QME's Findings Summary Form), and DWC-AD form 100 (DEU) (Employee's Disability Questionnaire)(See, 8 Cal. Code Regs. §§ 10160 and 10161) and DWC-AD form 101 (DEU) (Request for Summary Rating Determination of Qualified Medical Evaluator's Report)(See, 8 Cal. Code Regs. §§10160 and 10161), with the document cover sheet, DWC-CA form 10232.1 (see, 8 Cal. Code Regs. § 10232.1), and separator sheet, DWC-CA form 10232.2 (see, 8 Cal. Code Regs. § 10232.2), as required by Title 8, California Code of Regulations section 10160(d)(4);

(8) Whenever the report addresses permanent impairment, permanent disability or apportionment and the injured worker is represented by an attorney, a copy of the report with the completed QME Form 121 attached shall be served with QME Form 122 (AME or QME Declaration of Service of Medical-Legal Report) on the physician designated by the injured worker, the injured worker's attorney and on the claims administrator's attorney, or if none on the claims administrator.

(c) "Mental health record" for the purposes of this subdivision means a medical treatment or evaluation record created by or received and reviewed by a licensed physician, as defined in Labor Code section 3209.3, in the course of treating or evaluating the injured worker in a workers' compensation claim, and includes for the purposes of this subdivision but is not limited to, treatment records and comprehensive medical-legal reports.

(d) Upon serving the employee's copy of the medical-legal report in compliance with subdivisions 36.5(b)(6), 36.5(b)(7) or 36.5(b)(8) of Title 8 of the California Code of Regulations on the physician designated by the employee on the QME Form 121 (Declaration Regarding Protection of Mental Health Record), the evaluator's obligation to serve the report on the injured worker under Labor Code sections 139.2(j)(1) and 4061(c), and section 36 of Title 8 of the California Code of Regulation, shall be deemed satisfied.

(e) Mental health records subject to a determination under Health and Safety Code section 123115(b) and this subdivision shall be kept confidential by the claims administrator and all parties' attorneys in the case unless ordered otherwise by a Workers' Compensation Administrative Law Judge. Whenever such a mental health record is filed by a party at the Workers' Compensation Appeals Board, the party filing such a record shall request and obtain a protective order from a Workers' Compensation Administrative Law Judge that shall specify in what manner the mental health record may be inspected, copied and entered into evidence.

(f) Whenever the injured worker advises the evaluator that he or she prefers to have the evaluation report served on a designated physician as provided in subdivision 36.5(b) above, and the evaluator does not make a determination pursuant to Health and Safety Code section 123115(b), the evaluator shall provide QME Form 120 (Voluntary Directive for Alternate Service of Medical-Legal Report) (See, 8 Cal. Code Regs. § 120) to the injured worker and shall request the injured worker to complete the form before leaving the evaluator's office.

(g) Upon receipt by the evaluator of a QME Form 120 completed by the injured worker, the evaluator shall attach the original executed QME Form 120 to the original medical-legal report for service on the claims administrator, or if none on the employer. The evaluator shall serve the evaluation report with QME Form 120 attached by completing the questions and the declaration of proof of service on QME Form 111 (Qualified Medical Evaluator's Findings Summary Form) (See, 8 Cal. Code Regs. § 111). In the case of an unrepresented injured worker, the evaluator shall serve the report with the required forms as provided in subdivision 36.5(b)(7) of Title 8 of the California Code of Regulations. In the case of a represented injured worker, the evaluator shall serve the report with QME Form 120 attached, by completing the declaration of service on QME Form 122 (AME or QME Declaration of Service of Medical-Legal Report)(See, 8 Cal. Code § 122) and serving it with the report.

(h) Whenever an evaluation report is being served on a designated physician with QME Form 120 (Voluntary Directive for Alternate Service of Medical-Legal Report) (See, 8 Cal. Code Regs. § 120), the evaluator shall serve two copies of the medical-legal report with the QME Form 120 attached on the physician designated on the form by the injured worker, at the same time as serving the copies of the medical-legal report on the claims administrator, or if none on the employer, and on the injured worker's attorney if any. Service of a medical-legal report by an evaluator in compliance with this subdivision shall satisfy the evaluator's obligation to serve a copy of the report on the employee under Labor Code sections 139.2(j)(1) and 4061(c,) and section 36 of Title 8 of the California Code of Regulations.

(i) The physician designated by the injured worker in writing and listed on QME Form 120 or QME Form 121 shall not be limited to the primary treating physician in the disputed workers' compensation claim. As an additional medical treatment expense incurred in the claim within the meaning of section 4600 of the Labor Code, the claims administrator, or if none the employer, shall reimburse the physician designated by the injured worker and listed on either the QME Form 121 (Declaration Regarding Protection of Mental Health Record) or the QME Form 120 (Voluntary Directive for Alternate Service of Medical-Legal Evaluation Report on Disputed Injury to the Psyche), for one office visit, when used, for the purpose of reviewing and discussing the evaluator's report with injured worker, at the applicable rate under section 9789.11 (Physician Services Rendered on or After July 1, 2004) of Title 8 of the California Code of Regulations for an office visit and may include, as appropriate, record review, any necessary face-to-face time during the visit in excess of that specified in the applicable CPT office visit code, and charges, for time required to prepare a treatment report pertaining to the office visit, if necessary.

(j)Whenever the comprehensive medical-legal report is served by the evaluator on a physician pursuant to subdivision 36.5(f) with the QME Form 120 (Voluntary Directive for Alternate Service of Medical-Legal Report on Disputed Injury to the Psyche) attached, one of the two copies of the medical-legal report served on the designated physician shall be provided to the injured worker by the designated physician during the office visit.

(k) In the event the injured worker refuses or fails to designate a physician in writing to be listed on either QME Form 120 or QME Form 121, the evaluator shall serve the report as appropriate under section 36 or section 36.5, and within the time periods under section 38, of Title 8 of the California Code of Regulations, except that the injured worker's copy of the report which is subject to a finding under Health and Safety Code § 123115(b) shall then be served only on the injured worker's attorney, if represented, or if not represented on the injured worker's primary treating physician.

NOTE: Forms referred to above are available at no charge by downloading from the web at www.dir.ca.gov/dwc/forms.html or by requesting at 1-800-794-6900.

   Note: Authority cited: Sections 133, 139.2 and 5307.3, Labor Code. Reference: Sections 56-56.37, Civil Code; Sections 4060, 4061, 4062, 4062.1, 4062.2, 4064, 4067, 4600 and 4660-4664, Labor Code; Section 123115(b), Health and Safety Code.

 HISTORY 

   

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