A med legal report is a medical evaluation of an injured worker by an independent doctor to resolve a disputed issue in a treating doctor’s report. The dispute can be related to the
- cause of injury,
- parts of the body injured,
- temporary disability, or
- permanent disability.
The med legal doctor does not provide treatment.
The evaluating med legal doctor is called a qualified medical evaluator (QME) or an agreed medical evaluator (AME). If an injured worker does not have an attorney, he or she can request a QME. If the injured worker does have an attorney, he or she can agree on an AME with the insurance company or request a QME.
A request for a med-legal report is based on:
- a dispute as to whether there is a work injury
- a permanent disability dispute
- any other dispute such as part of body injured or temporary disability
A QME is selected by making a request to the Medical Unit of the Department of Workers’ Compensation. The request includes the disputed issue and the type of specialist. The Medical Unit will send a list of three doctors in the specialty requested.
If an injured worker does not have an attorney, he or she can select any doctor on the list. If the injured worker does have an attorney, his or her attorney will strike one doctor. The insurance company will strike a doctor. The remaining doctor is the QME.
The med-legal doctor is required to submit a report addressing the injury and disability status.
Either party can request further reporting from the med-legal doctor by written questions or by deposition.
A med-legal doctor will not testify at a workers’ compensation trial. The doctor’s reports and deposition testimony are submitted at trial.
In this article, our California personal injury attorneys will explain;
- 1. What is a med-legal report?
- 2. Relationship of treating physician to the med-legal process
- 3. The med-legal process is not for treatment disputes
- 4. Types of disputes
- 5. Med-legal procedure if the injured worker does not have an attorney
- 6. Med-legal procedure if the injured worker does have an attorney
- 7. Materials to send to an AME or QME
- 8. A med-legal evaluation and report
- 9. How to communicate with an AME or QME
- 10. Additional opinions from an AME or QME
- 11. How to use med-legal reporting in a workers’ compensation case
A med-legal report is a medical evaluation of an injured worker by an independent doctor to resolve a disputed issue in a treating doctor’s report.
1. What is a med-legal report in California workers’ compensation?
A med-legal report is the result of a challenge to the opinion of the treating doctor by the injured worker or insurance company.
An independent doctor evaluates the injured worker to resolve the dispute. The doctor is called an agreed medical evaluator (AME) or qualified medical evaluator (QME) depending on the procedure used. An AME or QME does not treat an injured worker.
Med-legal doctors do not testify at a trial. The medical evidence from an AME or QME is submitted at trial through written reports and depositions.1
The insurance company has to pay for all med-legal reports.2
An injured worker that fails to attend a med-legal evaluation may lose his or her right to pursue benefits until he or she attends the exam.3
The injured worker can obtain a medical report outside of the med-legal process and use it in court, but he or she will have to pay for the report.4 This is rarely done as it will cost the injured worker several thousand dollars.
2. Relationship of treating physician to the med-legal process
The treating physician determines:
- what treatment the injured worker should receive
- if there is an injury
- which parts of the body are injured
- the amount of temporary disability the injured worker should receive
- the amount of permanent disability
However, the treating physician is not necessarily the final say in any of these areas. The med-legal process and the selected AME or QME can address any issue.
A med-legal report will generally carry more weight with a judge than a treating physician report, but it also depends on the quality of the report. A poorly reasoned report by a QME will not be more convincing than a better-written report by a treating physician.
3. The med-legal process is not for treatment disputes
Treatment requests by the treating doctor are put through utilization review. Utilization review is a special process for determining appropriate treatment.5 It is separate from the med-legal process.
All treatments must comply with standard treatment guidelines. Utilization review has a method for an injured worker to challenge the treatment recommendations of the treating physician.
4. Types of disputes
The med-legal procedure used depends on the specific dispute.
- If there is a dispute over whether the injury occurred, called compensability, the issue is decided by an AME or QME.6 The exam can be requested at any time after the claim form is filed.7
- If there is a dispute over whether there is permanent disability, how much permanent disability, or the need for future medical care, the issue is decided by an AME or QME.8 The section is triggered after the last payment of temporary disability. The insurance company is required to notify the employee of its opinion on each of these issues.9
- If there is any other dispute related to a determination of the treating physician that is not related to utilization review, the issue is decided by an AME or QME.10 Any objection should be raised within 20 days of receipt of a report if the injured worker is represented by an attorney or 30 days if they are not.11 The issue may be whether there is an additional part of the body injured.
An injured worker cannot agree to an AME if he or she does not have an attorney.
5. Med-legal procedure if the injured worker does not have an attorney
An injured worker cannot agree to an AME if he or she does not have an attorney. The parties must use the QME process.12
To request a QME, the injured worker will need to fill out a Panel QME request form which includes:
- date of injury
- claim number
- requesting party
- medical specialty requested
- reason for request
- employee contact information
- insurance company contact information13
The insurance company must give the injured worker ten days to submit the form before the insurance company can submit the form.14 This gives the injured worker the chance to select the specialty of the evaluating doctor.
The injured worker then sends the form to the California Division of Workers’ Compensation – Medical Unit and a copy is sent to the other party.
The Division of Workers’ Compensation will send the injured worker and insurance company a list of three doctors in the specialty requested.
The injured worker has ten days from receipt of the list to select a doctor and inform the insurance company. The injured worker should schedule the appointment.
If the injured worker does not select a doctor within ten days, the insurance company can select the doctor.15
The doctor will send the injured worker a written notice of the appointment.
At the appointment, the QME will give the injured worker a chance to ask questions about the evaluation and QME. If the injured worker has good cause not to participate in the exam, he or she can request a new panel list.
If a judge later determines the injured worker did not have good cause, he or she will have to pay for the cost of the exam out of any award he or she may receive.16
If an injured worker gets an attorney after the exam, he or she cannot start the process over.17
If a new dispute comes up, the parties should try to use the same QME.18
6. Med-legal procedure if the injured worker does have an attorney
An injured worker that does have an attorney can reach an agreement with the insurance company on an AME doctor to evaluate him or her.19
Both the attorney for the insurance company and the attorney for the injured worker will be familiar with doctors that generally evaluate workers’ compensation cases. Each attorney’s opinion on whether a doctor is favorable to his or her side, or at least fair, will determine if there is an agreement on an AME.
If the attorneys cannot agree on a doctor, a QME will evaluate the injured worker.
The QME process when an injured worker has an attorney is:
- The attorney sends an objection letter based on the disputed issue in the treating doctor’s report
- Ten days later, the attorney requests a panel list in a medical specialty
- When the panel is received, each side strikes one name from the three names listed
- The injured worker schedules an appointment with the remaining doctor.20
If one party does not strike a name within ten days, the other party can select any remaining doctor.
As with AMEs, both attorneys will be familiar with some or all of the doctors on the three-doctor panel QME list.
The doctors are selected at random. Therefore, the panel list may be more favorable to one side or the other.
7. Materials to send to an AME or QME
The insurance company and injured worker can send to the QME:
- records prepared or maintained by the employee’s treating physician or physicians.
- medical and nonmedical records relevant to the determination of the medical issue21
Any information sent to the QME must be sent to the other side 20 days before it is sent to the QME. Medical records will always be provided to the QME. However, if one party objects to non-medical records being sent to the QME, the records will not be sent.22
If there is an AME, the parties will agree on what materials can be sent to the doctor.23
Both a QME and AME must identify all information:
- received from the parties
- reviewed in preparation of the report
- relied upon in the formulation of his or her opinion24
The materials sent to an AME or QME will be listed on a schedule of records. A letter sent with the materials will describe the injury and the issues the AME or QME needs to address.
Any communication in writing with a QME after an exam must be sent to the other party when it is sent to the QME.25
8. A med-legal evaluation and report
The med-legal doctor must:
- take a complete history
- review and summarize prior medical records
- compose and draft the conclusions of the report26
The doctor may request diagnostic testing to complete his or her reporting, including:
- x-rays
- MRIs
- lab tests
- other diagnostic studies27
The insurance company will pay for an interpreter, if necessary.
The med-legal report in California workers’ compensation cases must include:
- the date of the examination
- the history of the injury
- the patient’s complaints
- a listing of all information received in preparation of the report or relied upon for the formulation of the physician’s opinion
- the patient’s medical history, including injuries and conditions
- findings on examination
- a diagnosis
- opinion as to the nature, extent, and duration of disability and work limitations
- cause of the disability
- treatment indicated, including past, continuing, and future medical care
- if permanent disability has resulted from the injury and whether or not it is stationary, and; if stationary, an evaluation of the disability
- apportionment of disability
- a determination of the percent of the total causation resulting from actual events of employment, if the injury is alleged to be a psychiatric injury
- the reasons for the opinion
- the signature of the physician
The report should be completed within 30 days of the exam.28 If the report is not done within 30 days, either party can request a new doctor.29
9. How to communicate with an AME or QME
If the insurance company or injured worker communicates with the AME or QME without letting the other party know, the other side can stop the exam and get an exam with a new doctor.30 Communication with a doctor without letting the other party know is called ex-parte communication.
Discussions to schedule appointments and send records do not count as ex-parte communication.31
10. Additional opinions from an AME or QME
Often the initial opinion of the AME or QME will not resolve the disputed issues, or the injured worker or insurance company will have a disagreement with the AME or QME’s initial opinion.
If the parties need additional medical opinions from the doctor, it is requested through:
- interrogatories and supplemental report
- depositions
- re-evaluations
Interrogatories are written lists of questions. A letter with the questions is sent to the doctor, with a copy sent to the other side. The doctor will answer the questions in a new report, but he or she will not re-evaluate the injured worker.
A deposition of the med-legal evaluator is an in-person questioning of the doctor under oath. A court reporter is present to record the testimony. The testimony is put into a booklet and acts much like a report would. It is evidence that can be submitted at a California workers’ compensation trial.
Either the injured worker or the insurance company can schedule the deposition of the doctor. At the deposition, either party can ask the doctor questions.
Often after a deposition, the doctor will either issue a supplemental report based on questions asked in the deposition or re-evaluate the injured worker.
There is no limit to the number of interrogatories, supplemental reports, depositions, or re-evaluations of a doctor in one case.
11. How to use med-legal reporting in a workers’ compensation case
There will often be a med-legal report in a California workers’ compensation case. Either the injured worker or insurance company will disagree with a determination of the treating physician.
Doctors who act as AMEs or QMEs have reputations as being favorable to injured workers or insurance companies. Therefore, the evaluating doctor has a large effect on the dollar value of an injured workers claim.
Much like the selection of a treating doctor, the choice of an AME or QME should be carefully researched and considered. Making the right choice can be one of the most important decisions in a workers’ compensation case.
Call us for help…
Contact us for help with any workers’ compensation matter.
For help with filing a workers compensation claim in California, completing workers comp forms or appealing a denial of benefits, contact us. Our firm helps police officers, firefighters and other workers to get compensation for their job-related injuries in California.
Legal References:
- Cal. Code Regs., § 8, tit. 10606.
- Cal. Lab. Code § 4064(a).
- Cal. Lab. Code § 4053 4054.
- Cal. Lab. Code § 4064(d).
- Cal. Lab. Code § 4610.
- Cal. Lab. Code § 4060.
- Cal. Lab. Code §§ 4060(b) 4060(c).
- Cal. Lab. Code § 4061.
- Cal. Lab. Code § 4061(a).
- Cal. Lab. Code § 4062.
- Cal. Lab. Code § 4062(a).
- Cal. Lab. Code § 4062.2.
- QME Form 105.
- Cal. Lab. Code § 4062.1(b).
- Cal. Lab. Code 4062.1(c).
- Cal. Lab. Code § 4062.1(d).
- Cal. Lab. Code § 4062.1(e).
- Cal. Lab. Code § 4062.3(k).
- Cal. Lab. Code § 4062.2(f).
- Cal. Lab. Code § 4062.1.
- Cal. Lab. Code § 4062.3(a).
- Cal. Lab. Code § 4062.3(b).
- Cal. Lab. Code § 4062.3(c).
- Cal. Lab. Code § 4062.3(d).
- Cal. Lab. Code § 4062.3(e).
- Cal. Lab. Code § 4628.
- Cal. Lab. Code § 4620.
- Cal. Lab. Code § 139.2.
- Cal. Lab. Code § 4062.5.
- Cal. Lab. Code § 4062.3(g).
- Cal. Lab. Code § 4062.3(f).