California: The PQME Process and the Remote Medical-Legal Evaluation

What is the potential role of telemedicine when it comes to PQME evaluations?

In Gonzales v. ABM Industries, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel, denying removal, affirmed the WCJ’s order instructing the Medical Director to replace the originally assigned qualified medical evaluator panel in the specialty of pain management, when the original panel included the qualified medical evaluator Behzad Emad, M.D., who performed evaluations via telemedicine through the use of interactive audio, video, or data communications, and employed unidentified designee, later revealed to be a chiropractic specialist, to conduct the physical examination portion of the evaluation while he was present only electronically.

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The WCAB concluded that it was questionable whether such a method of evaluation, where the evaluator was not physically present, complied with 8 Cal. Code Reg. § 49.2, requiring that the evaluation include no less than 20 minutes of “face to face” time, that Labor Code § 4628(a) prohibits any person other than the physician who signs the report from examining the injured worker, that failure of the original panel to identify the person or specialty of the physician actually examining the applicant deprived the parties of the opportunity to make an informed decision regarding the selection of a panel qualified medical evaluator, and that the defendant did not demonstrate that the issuance of a replacement panel caused substantial prejudice or irreparable harm so as to justify removal.

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Commentary:

This case raises several interesting questions. The first question that must be asked is what is the potential role of telemedicine when it comes to PQME evaluations? The cases that have addressed Dr. Emad’s telemedicine arrangement, and all which have denied it thus far, like Gonzales, have focused on the fact that the PQME does not do the actual physical examination of the patient. Implicitly, Dr. Emad is acknowledging the importance of the physical examination by designating an unidentified chiropractor to perform the physical exam, but that seems to be the major reason the proposed arrangement fails to pass judicial scrutiny.

The larger question is why was Dr. Emad’s request to be allowed to perform these telemedicine evaluations granted by the Division of Workers’ Compensation to begin with? Is the current Acting Administrative Director signaling that remote PQME evaluations are something that the Division would like to establish in the future? There is no question that the trend in workers’ compensation is in favor of a more automated, less personnel, approach to each individual case. For example, in both the Utilization Review and Independent Medical Review processes, the individuals are not examined by the physician and appeals of those determinations are extremely difficult.

Unlike UR or IMR, in the context of the PQME process, should an individual have a due process right to be examined in person by the physician? The answer to this question is not precisely clear. Parties are currently allowed to appear remotely or virtually, if you will, at workers’ compensation hearings. In fact, in many cases, allowing an injured worker or witness to appear remotely has enabled several cases to proceed to trial that would not otherwise be able to. Perhaps the Division is on to something here? Perhaps rules could be drafted that would allow for telemedicine by the PQME if the parties first stipulate to accept the treating physician’s physical exam findings?

Regardless of what additional rules may be required to ensure that a full and fair medical-legal evaluation occurs, remote technology is here to stay. It might benefit the workers’ compensation community to begin discussing what role this technology should play, if any, when it comes to the PQME process.

Read the Gonzales noteworthy panel decision.

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