We have all seen it. The parties proceed to a PQME, then the doctor needs diagnostic testing of some sort (e.g., EEG, MRI, etc.), wherein they need to review the results and comment further.
A Board Panel decision from 2019 that should be considered is Jessica Dutcher v. California Psychcare, Inc. is still being relied upon by Judges to order penalties under Labor Code Section 5814, when the defendant fails to take affirmative steps in procuring tests needed by the PQME.
In that particular case, the PQME requested a complete psychiatric evaluation and diagnostic tests, including blood tests, polysomnogram, EEG, and MRI of the applicant’s brain. However, more than 70 days passed since the PQMEs report and still, no authorization had been provided by the defendant, and more than 90 days had elapsed by the time they were performed. The applicant filed for penalties under Labor Code Section 5814 under the argument that there was an unreasonable delay, and the WCJ allowed a penalty to issue.
“But our PQME Letter Told the PQME He Could Order it Himself!”
In hopes of avoiding a penalty, the defendant argued that their PQME advocacy letter had provided authorization to complete any testing in advance that the PQME needs.
Too bad, defendant. The WCAB ruled that the defendant did not take any affirmative steps in procuring the testing needed and allowing it to languish over 70 days without action being taken. By the time the testing was performed, it was more than 90 days from the report. Simply put, too much time had elapsed, thereby making the delay unreasonable.
What Does This Mean for You?
Obviously, we are all busy, and every day we are getting busier and busier with claims, discovery issues, claims to handle, etc. However, make sure you do not let diagnostic testing slip through the cracks. Even if the case is denied, and/or you believe the testing is unwarranted, that does not absolve the defendant from moving forward affirmatively and proactively to get these done in a timely manner. Otherwise, you could be looking at Labor Code Section 5814 penalties for reasonable delay, and even potentially attorney’s fees. The penalty can be up to 25% of the delayed compensation, up to $10,000.00.
In closing, be proactive when you see testing is requested by a PQME. It can save you much grief in the long run.
What About Utilization Review and Independent Medical Review Instead?!
PQMEs are medical-legal examinations, and these diagnostic requests are for the PQME to be able to complete their evaluation. This is not a request for treatment that goes through the UR/IMR process.
The WCAB ruled that defendants must investigate and develop definitive medical evidence to evaluate the applicant’s claim of injury as part of Administrative Director Rule 10109. It was the delay and failure to take affirmative steps in procuring the tests that unreasonably delayed the investigation of injury claim and whether benefits were due to the applicant pursuant to 8 Cal. Code Reg. Section 10109.