Remote Medical Treatment Examinations & Medical-Legal Appointments

REMOTE MEDICAL TREATMENT EXAMINATIONS AND MEDICAL-LEGAL APPOINTMENTS

On March 19, 2020, Gov. Gavin Newsom issued an executive order in response to COVID-19 requiring all individuals living in California to stay home or at their place of residence, except for what are deemed to be essential activities. Although health-care providers and hospital personnel are part of the essential workforce, not all medical services are essential. The California Coronavirus (COVID-19) Response website states, "Non-essential medical care like eye exams, teeth cleaning, and elective procedures must/should be cancelled or rescheduled. If possible, health care visits should be done remotely."

Employers generally view all workers' compensation doctors' visits as essential. Medical visits are necessary to determine whether an employee should remain off work, and if not, whether their work restrictions can be accommodated. Otherwise, employees could use the COVID-19 to extend their disability.

Many employees, on the other hand, may feel their workers' compensation doctors' visits are not essential during the COVID-19 pandemic, particularly if their the employee's condition hasn't changed. Even employees who believe the visits are essential, such as when they need to renew their medications, may fear contracting the coronavirus during their doctors' visits.

Because of COVID-19, the Division of Workers' Compensation (DWC) issued a Newsline encouraging all parties to consider creative solutions for providing care to injured workers. The DWC specifically noted that the increased use of telehealth (also called telemedicine) for medical treatment might be appropriate.

TELEHEALTH FOR MEDICAL TREATMENT APPOINTMENTS

Per Business and Professions Code § 2290.5(a)(6), telehealth is defined as "the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care." Telehealth enables a physician to use video conferencing, video calling or other similar technology to evaluate a patient. The appeals board has recognized that telehealth services may be used to treat injured workers. For further discussion on the use of telehealth, see Sullivan on Comp section Section 7.3 Scope of Care –– Applied Cases. For a complete discussion on the timing of medical appointments and required reporting, see Sullivan On Comp section 7.13 Primary Treating Physician.

Normally, before treating via telehealth, a physician must obtain consent from the injured worker. Business and Professions Code § 2290.5(b) states that "the health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented." However, on April 3, 2020, Governor Newsom issued an executive order suspending the requirement to obtain verbal and written consent before the use of telehealth services.

Additionally, on April 13, 2020, the DWC adopted changes to the fee schedule to encourage the use of telehealth during the COVID-19 public health emergency. Essentially, the fee schedule was modified for physician services on or after April 15, 2020 to equalize the payment for a service whether provided in a physician’s office or through telehealth using real time audio and video telecommunications. Thus, the DWC encouraged the use of telehealth by making payment the same regardless of whether the evaluation is conducted in person or via telehealth.

TELEHEALTH FOR MEDICAL-LEGAL EXAMINATIONS

Although telehealth services are permissible to treat an injured worker, they are normally not permissible for medical-legal evaluations. This is because qualified medical evaluators (QMEs) have specified "face to face time" requirements for medical-legal evaluations. California Code of Regulations, tit. 8, § 49(b) defines "face to face time" as "only that time the evaluator is present with an injured worker." So it seems that QMEs are required to be physically present for specified time periods during an injured worker's examination, unless somehow a video conference could be seen to meet this definition (see Sullivan on Comp Section 14.44 Evaluation Requirements and Rights).

On March 28, 2020, however, the DWC issued a Newsline finding that "it may be beneficial for parties to allow telehealth for QME evaluations when an in-person physical examination is not necessary." The DWC "strongly recommends" that all of these conditions apply to a telehealth evaluation to promote the health and safety of all parties:

1. The injured worker is able to participate in the telehealth evaluation without violating the stay-at-home order.
2. The medical issue in dispute is determined to be essential to an injured worker’s benefits and must be addressed no later than May 1, 2020. The dispute must involve:
   1. an evaluation relating to whether or not the injury is arising out of employment/course of employment (AOE/COE);
   2. termination of an injured worker’s indemnity benefit payments; or
   3. work restrictions.
3. There is written agreement between the injured worker, carrier or employer, and the QME.
4. The telehealth evaluation is consistent with appropriate medical practices and ethical considerations.
5. The QME attests that the evaluation of the injured worker can be done effectively and safely by way of a telehealth evaluation and does not require an in-person physical examination.

The DWC is encouraging all parties to assess whether medical-legal evaluations requiring an in-person physical evaluations should be canceled or postponed as part of the stay-at-home response to COVID-19. It also instructs that a reasonable interpretation of compliance with the stay-at-home order could mean that medical-legal, face-to-face evaluations should be postponed or canceled, if they require the injured worker or others to travel and interact with anyone outside of their immediate household.

The Newsline clarifies that "[a]n in-person physical examination is necessary if the injured employee’s relevant health issues are such that a physical examination done in person has significant likelihood to contribute to the examiner’s ability to formulate an accurate diagnosis, or to more accurately gauge the outcome of treatment already provided. In such an instance, parties should evaluate whether the evaluation can be cancelled or postponed. If such circumstances do not require an in-person examination, then a telehealth visit should be allowed."

The issue with canceling or postponing a QME evaluation is that the administrative regulations contain time limits on when a QME evaluation must take place. Cal. Code Regs., tit. 8, § 31.3(e) generally requires an evaluation to be scheduled within 60 days of an appointment request. Reg. § 34(e) also provides that if a QME cancels an evaluation, the rescheduled appointment may not be more than 60 days from the date of the initial request for an appointment, unless the parties agree in writing to accept a date beyond the 60-day limit. Reg. § 31.5(a)(2)(a)(11) allows a party to request a replacement panel if an evaluation is not timely scheduled (see Sullivan on Comp Section 14.40 Appointments and Cancellations).

The Newsline of March 28, 2020 notes that strict adherence to the time limits for scheduling, canceling or rescheduling a medical-legal evaluation may be impractical or impossible during this public health crisis. Nevertheless, it states, "The issue of whether a medical-legal report is admissible or constitutes substantial medical evidence is determined in accordance with applicable laws and is not altered by these emergency measures."

Given the health crisis taking place in California and the rest of the world, parties should not use the technicalities in the law to gain an advantage. Residents across the state are being asked to stay home to protect the most vulnerable people, and the WCAB probably will not view efforts to use COVID-19 to game the system favorably.

For any QME evaluation scheduled in April 2020, the evaluator should be consulted to determine whether a face-to-face visit is necessary. If not, the parties should agree to allow the evaluation to proceed via telehealth. If so, the QME should be asked whether the evaluation can be performed safely face-to-face. If it cannot, the parties should agree to postpone the evaluation pending further guidance from federal, state and local public health agencies.