How A QME Can Avoid Ethical Mistakes That Trigger DWC Investigations and What to Do When One OccursJul 20, 2022
After years of representing Qualified Medical Evaluators (“QMEs”), we thought it might be beneficial to let the QME world know what we are seeing. One of the major areas seems to be “silly” and yet a staggering number of investigations and complaints oftentimes requiring legal representation from our firm concerning a QME’s off the cuff remarks. While we enjoy a good working relationship with the DWC, it dawned on us to share some stories in terms of what we are seeing and what you might be able to do to prevent investigations from occurring. So we hope you enjoy the short overview and comments below.
As you know, QMEs are key decision-makers about the benefits an injured worker should receive in the workers’ compensation system. QME reappointments occur every two years as long as the QME’s record is free of complaints about late reports, billing problems, and ethical or other professional misconduct, any one of which can lead to a Division of Workers Compensation (“DWC”) investigation that could threaten a QME’s reappointment.
Indeed, complaints about QME behavior, even if seemingly frivolous or unsubstantiated, can still trigger administrative investigations by the DWC. The mere existence of investigations, even without any DWC accusations (i.e., formal complaints), an administrative hearing, or evidentiary findings, may still lead the DWC to demand that the QME take ethics training courses, and a refusal to take the courses may impact the QME’s next reappointment. Sometimes mere investigations result in even more serious disciplinary actions proposed by the DWC.
Title 8 of the California Code of Regulations, section 40, governs QME disclosure requirements and provides, in part, that a QME must advise an injured worker prior to or at the time of the actual evaluation, that the injured worker may discontinue the evaluation based on good cause, which includes: (A) discriminatory conduct by the evaluator towards the worker based on race, sex, national origin, religion, or sexual preference, or (B) abusive, hostile or rude behavior including behavior that clearly demonstrates a bias against injured workers. Section 41 governs QME ethical requirements and provides, in part, that a QME must “Communicate with the injured worker in a respectful, courteous and professional manner.”
Sections 40 and 41 are the two QME regulations typically cited by the DWC when it writes to a QME after receiving an applicant’s complaint regarding discriminatory, unethical or unprofessional QME conduct during an evaluation.
At the outset of a QME evaluation, keep in mind that the claimant is not a patient to be treated, but a litigant in the workers’ compensation system looking for a positive QME evaluation to support a claim for benefits. Many claimants may not really be looking for a QME’s neutral evaluation. Thus, if the QME is unsympathetic to the injured worker’s claims during the evaluation, the claimant frequently makes a request for a replacement panel, often with an unsupported claim of discriminatory, unethical and/or unprofessional conduct. Too frequently we see a complaint is made for the ulterior purpose of replacing the QME with a hopefully more “sympathetic” one.
Jokes and attempts at humor can easily go awry for a QME, especially because of cultural differences and language barriers with the claimant. Numerous QMEs have received complaints about rude and discriminatory behavior that allege a bias against the injured worker. So it’s best not to give “friendly” advice to people who speak English as second language, such as “Try to learn better English and you’ll get better employment opportunities.” No matter how well intentioned, this kind of remark will not be well received. (A very experienced QME allegedly gave this advice, received a complaint, and found himself the subject of a DWC investigation.)
Also, never assume that a person with a certain type of surname doesn’t speak English well. If no interpreter is present, address the claimant as you normally would any claimant. One QME allegedly asked if a claimant spoke English and it turned out she was quite fluent and even had a Master’s Degree. The applicant complained to the DWC saying she found the question to be demeaning. Another QME allegedly berated a claimant’s work experience. Yet another QME allegedly commented about the claimant still living at home, but it turned out she was actually supporting her mother in the claimant’s own home. All three of these allegedly gratuitous comments resulted in formal complaints against the QMEs that triggered DWC investigations and retention of counsel.
QMEs must be careful to watch out for potentially emotional and/or mentally unstable claimants. Even rambling, incoherent complaints about allegedly biased, rude or discriminatory conduct during an evaluation can create problems for the QME. One complainant said “I believe that the P.Q.M.E. selected for my case has not communicated with me in a courteous, professional, and respectful manner during the entire evaluation process because of what clearly appears to be falsified, prejudiced, and discriminatory statements and remarks that he has noted about me in writing!” In this particular case, the QME report noted that there was likely a substantial psychological component to the claimant’s injuries. The claimant was infuriated that the QME would even comment about his psychological state since the QME was not a psychiatrist or psychologist. The complaint of course triggered a DWC investigation.
Another injured worker complained because the QME’s report noted that he had “flat feet” and that this might have caused or aggravated the industrial back injury. Because the “flat feet” were not part of the industrial injury to the back, the worker filed a complaint alleging “discrimination” based on her flat feet. While this complaint made no sense because flat feet potentially accounted for the back pain too, nevertheless, the DWC investigated the complaint.
Oftentimes QMEs ask how they can find out whether a complaint is made against them since the first time they hear about it is from the DWC (as there is no obligation for the injured worker to notify the QME of a complaint). One way is that the substance of a complaint can sometimes be obtained by making an appropriate California Public Records Act (“PRA”) request pursuant to Government Code § 6250 et seq., which requires the Department of Industrial Relations to respond within ten (10) business days. (Our firm has years of experience representing nearly 100 QMEs, and we particularly know how to get these documents through the Government Code.)
The bottom line for QMEs is to be extremely circumspect about your comments during an evaluation because the injured worker has a financial stake in the evaluation and might be QME shopping even when they see the assigned QME. Or, in fairness, the injured worker may just be very sensitive to comments about cultural or language differences. And if the DWC opens an investigation of a QME, it is best to respond to the DWC timely with a careful and thoughtful refutation of the erroneous allegations of discrimination and/or unprofessional conduct before they result in any DWC disciplinary action or affect the QME’s reappointment. Obviously, if the matter is a little bit sticky or complicated, it’s always better to retain experienced legal counsel to help the QME walk through the potential pitfalls that could face them in a DWC investigation that has been opened.
Hopefully you have found the foregoing helpful and we are always happy to get your feedback. Warm regards from RPNA.
Nicholas P. Roxborough, Burton Falk
Roxborough Pomerance Nye & Adreani, LLP
 An Agreed Medical Evaluator or AME can be picked without going through the DWC as long as the injured worker is represented by an attorney.
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