Because of the backlog of medical-legal evaluations caused by the COVID-19 pandemic, the Division of Workers’ Compensation (DWC) adopted emergency regulations for medical-legal evaluations and reporting. The regulations became effective May 14, 2020, and originally were set to expire March 12, 2021. But they have been extended until Oct. 12, 2021.
Under California Code of Regulations emergency regulation 46.2(a)(3), a medical-legal evaluation may be performed entirely through telehealth when all of these conditions are met:
- The injured worker is not required to travel outside of his or her immediate household to undergo the evaluation.
- A disputed medical issue involves whether the injury is AOE/COE, or the physician is asked to address the termination of an injured worker’s indemnity benefit payments, or address a dispute regarding work restrictions.
- There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer and the evaluator.
- The telehealth visit under the circumstances is consistent with appropriate and ethical medical practice, as determined by the evaluator.
- The evaluator attests that the evaluation does not require a physical exam.
Although an agreement by the parties and the QME normally is required, the regulations specify that an agreement to the telehealth evaluation cannot be unreasonably denied. If a party believes that such an agreement has been unreasonably denied, it may seek relief from the WCAB.
California lifted its stay-at-home order Jan. 25, 2021, but medical-legal evaluators still may conduct evaluations entirely through telehealth if the conditions in CCR emergency regulation 46.2(a)(3) are met. Some physicians and injured workers are still reluctant to do in-person evaluations.
In Rosenbrook v. Knight-Swift Transportation Holdings, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS 16, the WCAB upheld an injured worker’s right under CCR emergency regulation 46.2 to attend a telehealth medical-legal evaluation. The applicant sustained a specific injury and claimed injury to multiple body parts, including internal injury. A QME in internal medicine was selected and was asked to address whether a telehealth appointment was reasonable. He responded with a fax stating, “I … will conduct the PQME appointment for patient [Rosenbrook], Kenneth via telehealth w/o a physical examination.” The defendant objected to proceeding with a telehealth evaluation, but the WCAB concluded that the elements of emergency regulation 46.2(a)(3) were met.
It found that the applicant was not required to travel outside of his immediate household to accomplish the evaluation because the QME confirmed he would conduct the evaluation via telemedicine. It found that although the defendant accepted injury to the low back, there was a medical dispute over whether the applicant’s internal medical conditions were AOE/COE. It found that the QME confirmed he would conduct the telehealth evaluation without a physical examination and presumed that the QME would have advised the parties if he believed a telehealth evaluation was inconsistent with appropriate and ethical medical practice. The WCAB concluded that under the circumstances, the defendant unreasonably denied agreement to a telehealth evaluation per the emergency regulations.
Notably, the WCAB liberally interprets the factors in CCR emergency regulation 46.2(a)(3). Although the regulation limits the medical issues that may be resolved by a telehealth evaluation, including whether the injury is AOE/COE, the WCAB interprets this to include disputes over the compensability of any body part. This is contrary to the language in Labor Code § 4060, which applies to disputes over compensability and specifies that it does not apply when any parts of the body are accepted as compensable.
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