From the Desk Of:
Barry A. Saperstein
Shareholder Attorney
I received a notification from a certain Applicant Attorney's office that his clients were going to audio record QME evaluations. Sure enough, upon arriving at the evaluation, one of this attorney's clients, the applicant, indicated to the QME doctor she was going to audio record the proceedings. This caused the doctor to terminate the evaluation. Shortly after this terminated evaluation, our office received a bill from the QME doctor in the amount of $500 for a “No Show Fee.” My knee-jerk reaction was to object to the charge, file a DOR for an MSC so the Judge could decide if the doctor is allowed the charge this fee as he refused to proceed with the evaluation. If he is allowed to charge the fee, should the applicant/applicant attorney pay for the bill? Prior to the Hearing, I did a little research on the issue of audio recording QME appointments. In Rafael Guzman Rodriguez, Applicant v. Waste Management Collection and Recycling, 2018 Cal. Wrk. Comp. P.D. LEXIS 408, a Noteworthy Panel Decision, the Applicant wanted to audio record the evaluation with the audio recording function in his phone, pursuant to Code of Civil Procedure § 2032.510. Such CCP section allows evaluations to be audio recorded by a Court certified stenographer, as well as being audio recorded, in Civil Cases. The QME doctor in Rodriguez, as in my case, refused to go through with the evaluation being audio recorded by phone. The matter was the subject for Trial before a Workers Compensation Judge. The Trial judge determined the applicant had the right to pay for a Court Reporter to audio record the proceeding, but not use his phone to audio record the evaluation. Under Reconsideration, the WCAB Panel determined under CCP section 2032.510, the applicant may “record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.” Basically, if the CCP section applies in the Civil arena, it should also apply in the Workers’ Compensation arena. How does this ruling affect the Defense in the future? Certain applicant attorneys are using this audio recording of the evaluation as a tool for preventing an evaluation by a conservative QME going forward, knowing many QME doctors will not go forward with an evaluation being audio recorded. This allows the applicant the luxury of requesting a Replacement List of PQME doctors from the DWC Medical Unit, under CCR section 31.5 (a) (5) because the QME is unavailable pursuant to section 33 (Unavailability of the QME). However, under CCR section 33, none of the reasons are applicable here. Thus, in the event, if the applicant attorney requests a replacement Panel under this section, there may either be a Response by Rejection of the Request for a Replacement Panel or no response at all. Without a Replacement QME Panel to determine Permanent Disability, perhaps a creative defense attorney can negotiate a quick resolution of the case by C&R Agreement based upon the Range of Medical Evidence. Alternatively, use a conservative AME doctor. Pssst: The real grounds for requesting a replacement Panel in this instance may be found under CCR section 31.5(a) (15). The selected medical evaluator, who otherwise appears to be qualified and competent to address all disputed medical issues refuses to provide, when requested by a party or by the Medical Director, either: A) a complete medical evaluation as provided in Labor Code sections 4062.3(i) and 4062.3(k). Don't let this get around!