When Does Permissible Communication Become Impermissible Information In AME Contacts?

by Haight Brown & Bonesteel LLP
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On January 23, 2017, the Workers’ Compensation Appeals Board issued its first en banc decision since April 2016. In Bradley Maxham v. California Department of Corrections and Rehabilitation, ADJ3540065, the Board clarifies what is appropriate in communications with a Qualified Medical Evaluator (“QME”) or Agreed Medical Evaluator (“AME”).

California’s workers’ compensation system requires opinions from an AME or QME at various points in the litigation. For example an AME or QME opinion is required evidence when the Board must decide the compensability of a claim or the nature and extent of impairment. When communicating with an evaluator, the parties must strictly follow California Labor Code section 4062.3 and California Code of Regulations Title 8, section 35. These provisions require the agreement of all the parties before any information is submitted to an evaluator, and require serving the opposing side with the information 20 days in advance of submitting it to the AME. The opposing party has 10 days to object to the proposed submission and the “information” may not be served on the AME if an objection is made.

Mr. Maxham’s attorney advised defense counsel of the intention to send an advocacy letter explaining Applicant’s theory to the three different AMEs selected in the case. The defendant immediately objected to the letters. Over defendant’s objections, Maxham’s attorney sent the letters to the AMEs. The defendant requested that the Workers’ Compensation Appeals Board (“WCAB”) find that Maxham’s attorney violated Cal. Labor Code section 4062.3(c) by sending “information” to the AME over defendant’s objection. The Workers’ Compensation Judge (WCJ) determined that Maxham did not require the permission of the defendant to send the letters to the AME, because the letters were mere “communications” permitted under the code.

The Judge found that a “communication” with an AME “relative to non-substantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication…” which is reflective of language in California Labor Code section 4062.3(f). A communication need only be served on opposing counsel when served on the AME. In the instant case, the Judge initially determined that the advocacy letters were not prohibited transmittal of information. On reconsideration, however, the Judge described the letters as containing both communications permitted without approval of the opposing party and information that required approval.

In response to the Defendant’s Petition for Removal, the WCAB remanded the matter back to the WCJ to determine whether the letter contained “information” rather than a “communication,” and provided guidelines to apply in making that determination. The WCAB indicated that “information” includes “records prepared or maintained by the employee’s treating physician or physicians and/or medical and nonmedical records relevant to determination of the medical issues.” An advocacy letter setting out the party’s legal position or pertinent decisions by itself does not convey information requiring agreement. However, advocacy may become “information” if the letter “contains, references or encloses (1) records prepared or maintained by the employee’s treating physician or physicians or, (2) medical and nonmedical records relevant to the determination of medical issues.” The WCAB also concluded that advocacy letters may become improper without agreement of the opposition. “Misrepresentation of case law or legal holdings, engaging in sophistry regarding factual or legal issues, or misrepresentation of actual “information” in a case are three ways in which a party might attempt to convey purported “information” to a medical examiner to which the opposing party has not agreed.”

The Maxham decision was written to clarify prior panel decisions which, the board concedes, may have created confusion in the community. The WCAB specifically disavows any prior opinion which does not comport with Maxham. Notwithstanding, it is left to the discretion of the trial judge to determine whether a communication contains information. As a result, we recommend that any letter directed to a QME or AME be carefully scrutinized and that the parties err in favor of allowing the opposing party 20 days to object before sending the letter to the evaluator.

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