Throwing out a QME Report: A 60-Second Seminar in Workers’ Compensation Claims Handling

There are times when an unrepresented injured worker vehemently disagrees with the findings of a Qualified Medical Evaluator’s (QME), and as a result, the worker seeks legal representation in hope of somehow setting aside the examination report.  The purpose of today’s blog is to explain what some applicant attorneys do to throw out a QME report.

The easiest way to dismiss a QME report is for counsel to contact the claims adjuster and propose an AME.  The adjuster is under no obligation to accept the proposal but instead, may opt to rely on the favorable QME report.  Unfortunately, some adjusters form the mistaken impression that once an injured worker retains a lawyer, they are entitled to a new QME exam.  Because of that, they needlessly agree to an AME, thus throwing out a perfectly good QME report and giving the applicant a free second bite at the apple.

Alternatively, if an applicant is unsuccessful in obtaining an agreement to use an AME, the next step is for counsel to somehow convince the adjuster that should the case proceed to trial the judge will allow a second QME evaluation. Once again, the AA is attempting to trick the adjuster.  Listed below are three arguments raised by applicant attorneys designed to fool the claims adjuster.  In each instance the foundation is not legally valid:

1. the injured worker retained counsel after the QME exam but before the report was issued.
2. the QME evaluation occurred after the injured worker scheduled an initial appointment with the attorney.
3. the injured worker switched med/legal tracks and is now represented, and therefore, subject to a new QME exam under LC §4061(a).

Again, these arguments are not supported by law and are nothing more than a bluff to get the adjuster to agree to an AME evaluation.

However, there are situations where an existing QME report will be thrown out.  This occurs when the claims representative failed to abide by the rules and regulations when requesting or scheduling the QME examination.  Such is usually based on alleged violations of CCR §30, LC §139.2(h), and LC §4061(d), and include:

1. Failing to serve medical and correspondence on the injured worker more than 20 days prior to the examination date.
2. Failing to advise the claimant of their right to object to non-medical documents being presented to the QME.
3. Evidence of ex-parte communication occurring between the adjuster and the QME prior to the examination.

Should you have any questions about the admissibility of a med/legal report being challenged, please feel free to contact the experts here at F+B for guidance and consultation.