(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.
Notes
Cal. Code
Regs. Tit. 8, §
35.5
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.
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.
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).