What about that Regulation No. 30?

On February 17, 2009, new regulations governing the QME process became effective, though without much fanfare, let alone controversy

Imbedded within these 97 pages of revised regulations is the so-called “Regulation No. 30,” which has been the subject of mounting concerns and growing frustration as claims professionals cope with yet a new set of oversight regulations, which have made an already confusing PQME process even more difficult, especially when a claim is on a delay status and consideration is being given to obtaining a compensability medical determination, under Labor Code Sec. 4060.

A strict application of Regulation No. 30 can have a potential “Catch 22” effect.  Very simply, The DWC Medical Director will not issue a 4060 QME panel if:

1)       The employer has accepted as compensable injury to any body part in the claim. [8 CCR 30(d)(2)]:   By illustration, if a claim form alleges injuries to the back, neck, arms, lower extremities, internal, psyche and nervous system, and the claims administrator admits only the neck, there is no 4060 PQME issuable for any of the other contested body parts.  For these contested body parts, only a 4062 PQME is permissible;

2)      If the claim is denied entirely: [8 CCR 30(d)(3)]:  In this case, only the employee may request a PQME for a 4060 evaluation.   For example, in the same claim as above illustrated, the claims administrator issues a claim denial, based upon Labor Code 3600(a)(1) and 3208.3 (e) “post termination” both psyche and physical.  This is a non-medical basis for the denial and therefore has no relationship to whether there is a disputed medical causation issue, which goes to the very heart of compensability, under Labor Code 4060.  Still, under these rules, the Medical Director will not permit a 4060 compensability examination.

3)      After the expiration of the 90 day period within which to deny a filed claim form under Labor Code 5402, a request for a 4060 PQME shall be issued only upon presentation of a finding and decision by a WCJ that the presumption under 5402(b) has been rebutted and an order that a QME panel should be issued to determine compensability

Needless to say, this rule provides an ongoing challenge when a claim is in the so-called “delay” stage, and the claims administrator wants to obtain a 4060 QME on compensability.  Here, it is important to remember that the DWC Medical Director will not issue the panel if either the claim has been “denied” in its entirety or any body part within the claim has been accepted.  The problem here is that this rule ignores the simple fact that there may be “multiple” reasons to contest a claim.  Also, over time, some of the grounds within which to deny a claim may change or a potential defense can give way. A claim can be denied by:

Statutory Defenses

  • Initial physical aggressor
  • Commission of a felony
  • Post-termination
  • Voluntary intoxication
  • Intentional self-infliction
  • Off-duty recreation
  • Lab C 5500.5
  • Good faith personnel actions


Factual Defenses

  • The incident did not occur / witnesses dispute alleged facts of injury
  • Inconsistent versions of the event
  • Alleged mechanics of injury make no sense
  • Applicant not in the course of employment
  • Injury did not arise from the employment
  • The applicant is not credible
  • Applicant suppressed relevant facts
  • Applicant was not candid

Medical Defenses

  • There is no medical injury
  • There is no medical condition diagnoses
  • The employment did not aggravate condition
  • The medical condition is idiopathic
  • False medical history to doctor
  • Medical opinion based upon surmise, conjecture, speculation and guess
  • Physician’s opinion is not substantial evidence
  • No medical causation
  • Alleged mechanics of incident are not consistent with industrial injury

Legal Defenses

  • Claim is time barred
  • Res Judicata (prior decision)
  • Case was settled previously by C and R
  • There is no offered proof
  • Claim Form does not assert body part in issue
  • Physician’s report is incomplete as it does not comply with the Rules governing medical reporting
  • Physician’s report is incomplete as opinion is outside of scope of doctor’s expertise
  • Physician suspended

Multiple defenses can occur and interplay with the medical causation issues and therefore if a claims administrator denies a claim based upon a statutory or factual defense and is therefore not permitted to obtain a 4060 PQME, what happens when within the 90 days, that defense is withdrawn?  What takes places if the claims administrator wants to develop the medical causation issues independently of any other claim denial bases? We don’t know.

RECOMMENDATIONS:

Now more than ever, the timing issues become very important. For example, you are in the 18th day and you may have a post-termination defense, but this hasn’t been fully developed.  If you issue the denial on that basis, then the claim is denied and no 4060 PQME shall be permitted under Rule 30.  On the other hand, you may want to make the decision to postpone that post-termination denial, obtain a 4060 PQME on the medical factual issues and then reserve your right thereafter to deny on the other grounds.  Of course, this comes at the risk of having to pay for the medical treatment per Lab C 5402(c) up to the $10,000 limit.

I am not convinced that a PQME should not issue, simply because there exists another threshold non-medical defense.  I therefore recommend the option of asking for a 4060 QME panel but telling the DWC Medical Unit that the medical causation issues have not been denied –that the claim was denied on non-medical grounds and the claims administrator is requesting a PQME on the medical causation issues, which have neither been denied or admitted.  Also, remember, a WCJ is empowered to issue an order for a panel, and when you have a hybrid case, involving both medical and non-medical causation issues, and/or legal grounds, it may be advisable to obtain an order for a 4060 Panel QME from a WCJ.

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