Cal. Code Regs. Tit. 8, § 41.5 - Conflicts of Interest by Medical Evaluators
(a) An evaluator shall not request or accept
any compensation or other thing of value from any source that does or could
create a conflict with his or her duties as an evaluator under the Labor Code
or the regulations of the Administrative Director (Title 8 of the California
Code of Regulations, Chapters 1 through 1.8, section
1 et seq) or of the Workers'
Compensation Appeals Board (Title 8 of the California Code of Regulations,
Chapters 1.9, sections
10600 through
10727).
(b) A conflict with the duties of an
evaluator as used in Labor Code section
139.2(o)
means having a disqualifying conflict of interest with one or more of the
persons or entities described in subdivision (c) and failing to disclose the
fact of the conflict.
(c) The
persons or entities with whom a disqualifying conflict of interest can exist
are:
(1) The injured worker, or his or her
attorney;
(2) The employer, or the
employer's attorney;
(3) The claims
adjuster or insurer or third party administrator, or their attorney,
respectively;
(4) Any primary
treating physician or secondary physician for the employee, if the treatment
provided by that physician is disputed in the case;
(5) The utilization review physician reviewer
or expert reviewer, or utilization review organization, only if the opinion of
that reviewer or that utilization review organization is disputed in the
case;
(6) The surgical center in
which the injured worker had, or is proposed to be used to have, surgery, only
if the need for surgery is disputed in the case.
(7) Other purveyor of medical goods or
medical services, only if the medical necessity for using such goods or
services is in dispute in the case.
(d) "Disqualifying Conflict of Interest"
means the evaluator has any of the following relationships or interests with a
person or entity listed in subdivision
41.5(c):
(1) A familial relationship of parent, child,
grandparent, grandchild, sibling, uncle, aunt, nephew, niece, spouse, financee
or cohabitant;
(2) A significant
disqualifying financial interest, as defined below, including:
(A) Employment or a promise of
employment;
(B) An interest of five
(5) % or more in the fair market value of any form of business entity involved
in workers' compensation matters, or of private real property or personal
property, or in a leasehold interest;
(C) Five (5) % or more of the evaluator's
income is received from direct referrals by or from one or more contracts with
a person or entity listed in subdivision
41.5(c), except
that contracts for participation in a Medical Provider Network as defined under
Labor Code section
4616 et seq
shall be excluded;
(D) A financial
interest as defined in Labor Code section
139.3 that
would preclude referral by the evaluator to such a person or entity;
(E) A financial interest as defined under the
Physician Ownership and Referral Act of 1993 (PORA) set out in Business and
Professions Code sections
650.01
and
650.02
that would preclude referral by the evaluator to such a person or
entity.
(3) A
professional affiliation which means the evaluator performs services in the
same medical group or other business entity comprised of medical evaluators who
specialize in workers' compensation medical - legal evaluations;
(4) Any other relationship or interest not
addressed by subdivisions (d)(1) through (d)(3) which would cause a person
aware of the facts to reasonably entertain a doubt that the evaluator would be
able to act with integrity and impartiality.
(e) An Agreed Medical Evaluator or a
Qualified Medical Evaluator may disqualify himself or herself on the basis of a
conflict of interest pursuant to this section whenever the evaluator has a
relationship with a person or entity in a specific case, including
doctor-patient, familial, financial or professional, that causes the evaluator
to decide it would be unethical to perform a comprehensive medical-legal
evaluation examination or to write a report in the case.
(f) An Agreed Medical Evaluator or Qualified
Medical Evaluator who knows, or should know, that he or she has a disqualifying
conflict of interest with any person or entity listed in subdivision
41.5(c), that also
is involved in the specific workers' compensation claim identified to the
evaluator, shall send written notification to the injured worker and the claims
administrator, or if none the employer, or their respective attorneys if any,
within five (5) business days of the evaluator becoming aware of the conflict.
The written notice shall include, at a minimum:
1) disclosure that a disqualifying conflict
of interest exists;
2) the person or
entity with whom the conflict arises; and
3) the category of conflict, such as
familial, significant financial, or other type of ethical conflict. Whenever
the evaluator declines to perform an evaluation due to disqualifying himself or
herself pursuant to subdivision
41.5(e), the
parties shall be entitled to a replacement QME or, in represented cases a
replacement panel pursuant to section
31.5 of Title 8 of the California
Code of Regulations. Whenever the evaluator notifies the parties of a conflict
without stating that he or she declines to perform the evaluation, the parties
shall follow the procedures set out in section
41.6 of Title 8 of the California
Code of Regulations. In any case in which the injured worker is not represented
by an attorney, the evaluator shall fax a copy of the notice of conflict to the
Medical Unit of the Division of Workers' Compensation at the same time it is
sent to the parties.
(g)
Any injured worker or claims administrator or if none the employer, including
his or her attorney respectively, who knows of, or becomes aware of, a
potential disqualifying conflict of interest, as defined under this section,
with a specific evaluator selected to perform a comprehensive medical/legal
examination and report or a follow up examination and report, shall notify the
selected evaluator in writing at the earliest opportunity and no later than
within five (5) business days of becoming aware of the potential conflict, to
enable the evaluator to determine whether the disqualifying conflict exists.
The notice shall include the person with whom the alleged conflict exists and
the nature of the conflict. A copy of this notice shall be served on the
opposing party at the same time as it is sent to the evaluator. The evaluator
shall review the information provided and advise the parties in writing within
five (5) business days of receipt of the notice whether the evaluator has a
conflict of interest as specified in this section.
Notes
Note: Authority cited: Sections 133, 139.2(o) and 5307.3, Labor Code. Reference: Sections 139.2 and 139.3, Labor Code; and Sections 650.01 and 650.02, Business and Professions Code.
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