(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.