Cal. Code Regs. Tit. 8, § 41 - Ethical Requirements
(a)
All QMEs, regardless of whether the injured worker is represented by an
attorney, shall:
(1) Maintain a clean,
professional physician's office (as defined in section
1(y) at all times
which shall contain functioning medical instruments and equipment appropriate
to conducting the evaluation within the physician's scope of practice and a
functioning business office phone with the phone number listed with the Medical
Director for that location which a party may use to schedule an examination or
to handle other matters related to a comprehensive medical/legal
evaluation.
(2) Schedule all
appointments for comprehensive medical-legal evaluations without regard to
whether a worker is unrepresented or represented by an attorney. A QME shall
not refuse to schedule an appointment with an injured worker solely because the
worker is not represented by an attorney or because a promise to reimburse or
reimbursement is not made prior to the evaluation.
(3) Not request the employee to submit to an
unnecessary exam or procedure.
(4)
Refrain from treating or soliciting to provide medical treatment, medical
supplies or medical devices to the injured worker.
(5) Communicate with the injured worker in a
respectful, courteous and professional manner.
(7) Refrain
from unilaterally rescheduling a panel QME examination more than two times in
the same case.
(8) Refrain from
cancelling a QME examination less than six (6) business days from the date the
exam is scheduled without good cause and without providing a new examination
date within thirty (30) calendar days of the date of
cancellation.
(b)
Evaluators selected from a QME panel provided by the Administrative Director
shall not engage in ex parte communication in violation of Labor Code section
4062.3.
(c) All QMEs, regardless of whether the
injured worker is represented by an attorney, shall with respect to his or her
comprehensive medical-legal evaluation:
(1)
Refuse any compensation from any source contingent upon writing an opinion that
in any way could be construed as unfavorable to a party to the case.
(2) Review all available relevant medical and
non-medical records and/or facts necessary for an accurate and objective
assessment of the contested medical issues in an injured worker's case before
generating a written report. The report must list and summarize all medical and
non-medical records reviewed as part of the evaluation.
(3) Render expert opinions or conclusions
without regard to an injured worker's race, sex, national origin, religion or
sexual preference.
(4) Render
expert opinions or conclusions only on issues which the evaluator has adequate
qualifications, education, and training. All conclusions shall be based on the
facts and on the evaluator's training and specialty-based knowledge and shall
be without bias either for or against the injured worker or the claims
administrator, or if none the employer.
(5) Present a report that addresses all
relevant and contested medical issues as presented on one or more claim forms,
is ratable by the DEU, if applicable, and complies with all relevant guidelines
of the Administrative Director.
(6)
Date the report on the date it is completed and ready for signature and service
on the parties. No report shall be dated on the date of the evaluation
examination unless the full written text of the report is completed and ready
for signature and service on that same date.
(7) Write all portions of the report that
contain discussion of medical issues, medical research used as the basis for
medical determinations, and medical conclusions made by the evaluator. In the
event more than one evaluator signs a single report, each signing physician
shall clearly state those parts of the employee evaluation examination
performed and the portions of the report discussion and conclusion drafted by
the signing evaluator. Where a consultation report is obtained by an evaluator
from a physician in a different specialty, the consultation report shall be
incorporated by reference into the final report and appended to the referring
QME's report.
(8) Serve the report
as provided in these regulations at the same time on the employee and the
claims administrator, or if none the employer, and on each of their attorneys,
respectively.
(d) All
aspects of all physical and/or psychological comprehensive medical-legal
evaluations, including history taking, shall be directly related to contested
medical issues as presented by any party or addressed in the reports of
treating physician(s). No evaluator shall engage in any physical contact with
the injured worker which is unnecessary to complete the examination.
(e) No physician certified by the
Administrative Director as a QME, or his or her agent, shall contact an
evaluator for the purpose of influencing that evaluator's opinions or
conclusions in any comprehensive medical-legal evaluation or report.
(f) No evaluator shall schedule appointments
to the extent that any injured worker will be required to wait for more than
one hour at the evaluator's office prior to being seen for the previously
agreed upon appointment time for an evaluation. An injured worker who is not
seen by the evaluator within one hour may terminate the exam and request a
replacement evaluator from the Administrative Director. No party shall be
liable for the terminated exam. The evaluator may explain any reasons for the
delay to the injured worker and, provided both parties agree, the evaluation
may proceed or be rescheduled for a later date. If the evaluation is
rescheduled, the evaluator shall provide notice of the new date of the
evaluation to the parties within 5 business days after rescheduling the
appointment.
(g) If the injured
worker terminates the examination process based on an alleged violation of
section 35(k),
40,
41(a) or
41.5 of Title 8 of the California
Code of Regulations, and the Appeals Board later determines that good cause did
not exist for the termination, the cost of the evaluation shall be deducted
from the injured worker's award. A violation of section
40 or of any part of section
41(a) or
41.5 by the evaluator shall
constitute good cause for purposes of an Appeals Board determination. No party
shall be liable for any cost for medical reports or medical services delivered
as a result of an exam terminated for good cause.
(h) Nothing in this section shall require an
evaluator to undertake or continue a comprehensive medical-legal evaluation
where the injured worker or his/her representative uses abusive language
towards the evaluator or evaluator's staff or deliberately attempts to disrupt
the operation of the evaluator's office in any way. The evaluator shall state
under penalty of perjury, the facts supporting the termination of the
evaluation process. Upon request, the Medical Director shall investigate the
facts and make a final determination of the issue(s).
(i) Nothing in this section shall require an
evaluator selected from a panel to undertake or continue a comprehensive
medical-legal evaluation where the injured worker is intoxicated or under the
influence of any medication which impairs the injured worker's ability to
participate in the evaluation process. The evaluator shall state under penalty
of perjury, the facts supporting the termination of the evaluation process.
Upon request, the Medical Director shall investigate the facts and make a final
determination of the issue(s).
Notes
2. New subsection (b), subsection relettering, and amendment of redesignated subsection (b)(1) filed 7-18-95 as an emergency; operative 7-18-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-15-95 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-18-95 order including amendment of subsection (b), deletion of subsection (b)(1) designator, and amendment of NOTE transmitted to OAL 11-14-95 and filed 12-21-95 (Register 95, No. 51).
4. Amendment filed 4-14-2000; operative 5-14-2000 (Register 2000, No. 15).
5. Amendment of section and NOTE filed 1-13-2009; operative 2-17-2009 (Register 2009, No. 3).
Note: Authority cited: Sections 133, 139.2, 5307.3 and 5307.6, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.1, 4062.2, 4062.3, 4062.5, 4067 and 4628, Labor Code.
2. New subsection (b), subsection relettering, and amendment of redesignated subsection (b)(1) filed 7-18-95 as an emergency; operative 7-18-95 (Register 95, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-15-95 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 7-18-95 order including amendment of subsection (b), deletion of subsection (b)(1) designator, and amendment of Notetransmitted to OAL 11-14-95 and filed 12-21-95 (Register 95, No. 51).
4. Amendment filed 4-14-2000; operative 5-14-2000 (Register 2000, No. 15).
5. Amendment of section and Note filed 1-13-2009; operative 2-17-2009 (Register 2009, No. 3).
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