Monday, September 16, 2013

YOU Created The QME Problem

I'm back on the California Qualified Medical Examiner issue.

Everybody, from the administration to attorneys and doctors in the system, have a different idea of why the QME process takes so long and fails to meet statutory time obligations, in addition to unnecessarily extending claim resolution.

Suzanne Honor-Vangerov, the managing attorney of the lien unit for Floyd, Skeren & Kelly − who prior to becoming an attorney served as manager of the Division of Workers' Compensation medical unit for seven years − in my opinion hit the proverbial nail on the head.

She said it's not fair to blame the DWC for "enforcing a policy that the Legislature has put forth," so "if people want to make it more simple, they should go to Sacramento and ask the Legislature to simplify the process."

I don't know what more to say.

The interests that created this process have unnecessarily instilled complexity in what used to be a very simple process - getting a medical opinion.

If we go back to the origins of why there is even a QME process, it was because certain interests got tired of competing docs, and awards just splitting the middle.

This stemmed from irritation arising from the perception that some claimants were getting more than they deserved and others getting less because the process wasn't "accurate."

So the cure that was devised was originally to force the parties to agree to an examiner and if that didn't work then to request a panel of examiners from an approved list kept by the DWC.

This created some frustration with litigating parties because of the mandate that they first attempt to agree, and document that attempt, on a medical evaluation (Agreed Medical Evaluation).

Various code sections and regulatory implementations conspired to create a serpentine process, but after a while folks figured it out, played the game, made up their own strategies to get what they wanted and the system sort of proceeded acceptably until the DWC got serious about enforcing the law.

When that happened things slowed down considerably because, as Honor-Vangerov put it"a human being has to type in every panel, and a human being has to look at every piece of mail."

Here's a couple of solutions that people can put into place right now, that won't cost any more money, and will expedite claims resolution by 6 months to a year:

1) Just settle the damned case. Hey, I know that sounds too easy to think it could work, but I'm willing to bet that most claims that go to a QME are within a pretty small range of settlement value. There may be a disparity of 10 percent on PD, maybe a couple months of TD - hey, just pay it and/or accept it. Poof, claim gone, delay gone, ex-mod minimally impacted, claimant moves on, attorneys close files for the next one. Applicant attorneys - don't be so obstinate. Your obligation is to zealously represent your client's best interests - but how are those interests defined? By the most amount of money obtained even to the point of bickering about a couple thousand dollars versus closing the case and letting the claimant move on?

2) Fine - you REALLY need to get some opinion either because of some business rule in the claims house, because you really, really think you're right, because your gut says there's not enough money on the table, or for whatever reason - just get some physician to do the evaluation. This is what's called an AME. Oh yeah, AME - but isn't that going to result in "splitting the baby"? Wah ... if you REALLY want to get the case closed then what do you care? Oh yeah, AMEs are scheduling a year out - well, only the AMEs YOU want to use. There are plenty of doctors, and if you're really interested in closing a case, who performs the work isn't going to matter.

3) Stop whining - the law was created because Sacramento interests perceived that constituents felt they were getting the raw end of the deal for whatever reason. Employer, carrier, administrator, applicant attorney - you wanted this, you got it. Work with it. Volunteer at the DWC medical unit to help process the paperwork. Maybe then you can observe first hand what goes on behind those walls and maybe then you'll be more careful with your paperwork.

Will these solutions satisfy people? Probably not - contention seems to be a theme in this "no fault" system. But when we look at what the real cost drivers are in workers' compensation claims, we need look no further than friction costs, i.e. the inability to get things done smoothly.

You may not like the result. You may take issue with an opinion. You may be disgusted by paying too much or accepting too little.

But YOU can get that claim resolved RIGHT NOW.

So let's get on with it. Stop blaming DWC for doing its job. YOU all created the problem, and it's up to YOU all to get out of it.

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