Younger: Rethinking the Kitchen Sink Technique| Staff Compensation Information

By Julius Young

Friday, March 12, 2021 | 43 | 0 | min read

Will the newly amended medical fee regulation change the compensation culture for California workers?

Julius Young

The proposed rules, expected to be formally adopted in April, include measures that may change the way cases are often handled.

The new California Medical Legal Fee schedule replaces the current hourly system with complexity modifiers with a flat rate based system. Under the new rules, the flat fee for a comprehensive assessment includes compensation for qualified medical assessors for record exams of less than 201 pages. For an initial QME assessment, reviewing records with more than 200 pages is billed at $ 3 per page.

These per-page charges can really increase when the bankers’ filing boxes are submitted to the QME.

Unfortunately, over the years I’ve noticed too much: “Throw it against the wall and see if it sticks”.

Sometimes this starts with debris that is lengthy investigations into legacy work experiences, minor past claims for damages from previous workers, and decades-old motor vehicle accidents. A worker may have been successfully employed by the defendant for 30 years, but some defense lawyers will hunt down vast amounts of old medical news. Many defenders tend to windmills in hopes of finding something that will warrant a split. The sink is sent to the QME in the hope that he / she will find something that will justify the division.

At $ 3 per page, this ill-considered strategy may not be cost-effective in many cases.

Further changes in practice may occur due to two components of the new MLFS. One of them is the requirement for a declaration of compliance with Labor Code 4062.3. The other is a page certification request.

The amended MLFS regulation 9793 (n) requires the following:

“All documents sent to the doctor for review must be accompanied by an affidavit that the provider of the documents has complied with the provisions of the Labor Code, Section 4062.3, before making the documents available to the doctor.”

Labor Code Section 4062.3 (b) and Reg. 35 require that information (including medical and non-medical records) to be delivered to the QME must be delivered to the other party 20 days before the information is communicated to the evaluator.

If the amended MLFS does not provide a declaration of compliance with LC 4062.3, a physician does not need to review the submitted records. Reg. 9793 (n) provides: “A doctor cannot bill for the review of documents that are not accompanied by this accompanying required declaration from the document provider.”

In the past, too many claims assessors and lawyers played quickly and easily with the requirements of LC 4062 and at the same time submitted documents to the QME when they were delivered to the other party. Reg. 9793 (n) will likely put the kibosh on it.

If one party has failed to meet the 20-day deadline for delivering records to the other party and is therefore unable to provide the required declaration under Reg. 9793 (n) prior to the first QME assessment, the party may need to submit the Regulations of Reg. 9793 (n) and then find a supplementary report.

The QME supplemental report fee is 50 pages of record reviews. However, record exams after the first 50 pages are billed at $ 3 per page.

Changed MLFS reg. 9793 (n) also requires a certificate from the party submitting the records that reads, “The declaration must also include a certificate stating the total number of pages of documents provided.”

If the certificate and declaration are not attached, the documents or records are deemed to be “not available to the doctor or received from the doctor”.

These changes make it less likely that the parties will be able to send each other out by making a last minute discovery and filing records that the other party has not had a chance to review and object to.

Since most of the records sent to QMEs are from claims auditors and defense lawyers, these amended regulations will place additional requirements on them that can help prevent abusive practices. Coupled with the $ 3 per page cost of QME reviews, this can give some payers a break from wanting a defensive strategy to throw against the wall and see if it is sticky.

As noted by the DWC in response to the forum’s comments:

“The obligation to pay $ 3 per page to review records should encourage carriers and attorneys to carefully select and count the records that are made available to the physician.”

Julius Young is an attorney for candidates and an associate at Boxer & Gerson law firm of Oakland. This column was reprinted from his Workers Comp Zone blog on the company’s website with his permission.