Former QMEs Dr. Timothy C. Howard, Dr. Meera Jani and Dr. Benjamin Simon have filed a lawsuit in the Los Angeles Superior Court against the California Department of Industrial Relations, its Director Christine Baker and other officials seeking a writ of mandate ordering their reinstatement and reappointment as a QME.
Howard has been licensed as an orthopedist since 1971, and has performed 400 to 500 total knee and hip surgeries, and 200 to 300 spinal surgeries. He was first appointed as a QME in 2005, and has prepared approximately 1,500 QME reports. Jani has been licensed as a chiropractor since 2000, and was first appointed as a QME in 2001. Simon has practiced medicine as a cardiologist for 30 years during which time he has performed thousands of interventional procedures. He has been a QME since 2015 and has prepared approximately 150 QME reports.
Prior to the DWC’s actions described below, none of them claim to have received any billing or other complaints from the DWC.
They allege that in addition to these three plaintiffs, so far approximately 400 QMEs have now “unlawfully” been denied reappointment out of a total DWC panel of only 3,000 QMEs, or approximately 1 3 .3% of all QMEs in California.
The 134 page complaint cites a variety of reasons for issuance of the relief they request. They assert that the DWC has “engaged in a scorched earth policy to deny reappointment licenses to qualified medical evaluators without due process of law – including without a hearing to challenge Respondents’ mere accusations – through Respondents’ imposition of new and different criteria governing such reappointments and the medical-legal fee schedule applicable to QMEs in California.”
The “new policy” they claim is the product of “underground regulations.” They allege that the DIR has “without notice, intentionally adopted underground regulations regarding the medical-legal fee schedule used as prima facie evidence of the reasonable fees paid for QME medical-legal evaluations of injured workers under California’s workers’ compensation system. These underground regulations are being utilized by Respondents to impose new and different criteria that effectively eliminate hourly billing code 104, a goal sought by the workers’ compensation insurers and other payors of the workers’ compensation benefits, which is contrary to the interests of the injured workers that workers’ compensation laws, for over 100 years, are designed to protect.”
Plaintiffs further say that respondents “are required by California law to provide QMEs with a hearing that protects QME rights to due process of law and procedural safeguards, before suspending, terminating or otherwise disciplining a QME for crimes, fraud, and all other violations of law, save for a few specifically enumerated circumstances that are irrelevant herein. However, through its use of underground regulations, Respondents have improperly extended the “no due process hearing” exception to apply specifically to the reappointment process for QMEs, thereby illegally denying reappointment based solely on mere accusations, and thus achieving an end-run around the QMEs’ rights to a due process hearing.”
The three allege they have requested hearings to contest the denial of their reappointment, and that the DIR refuses to allow them any type of hearing to present their case.
Petitioners allege that “a disproportionate number of QMES who have been denied reappointment without a due process hearing based on Respondents’ mere accusations of violations of the medical-legal fee schedule, reside in Los Angeles County.”