(Maxham v. California Dept. of Corrections and Rehabilitation (2017) ADJ3540065, 82 Cal.Comp.Cases 136 (Appeals Bd. en banc), at p. 2.)
“(a) Any party may provide to the qualified medical evaluator selected from a panel any of the following information: (1) Records prepared or maintained by the employee’s treating physician or physicians. (2) Medical and nonmedical records relevant to determination of the medical issue. (b) Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator. Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation. (c) If an agreed medical evaluator is selected, as part of their agreement on an evaluator, the parties shall agree on what information is to be provided to the agreed medical evaluator. (d) In any formal medical evaluation, the agreed or qualified medical evaluator shall identify the following: (1) All information received from the parties. (2) All information reviewed in preparation of the report. (3) All information relied upon in the formulation of his or her opinion. (e) All communications with a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator. (f) Communication with an agreed medical evaluator shall be in writing, and shall be served on the opposing party when sent to the agreed medical evaluator. Oral or written communications with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial 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 communications in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication. (Lab. Code, § 4062.3 [emphasis added].)”
(Lab. Code, § 4062.3(a)–(f), as quoted in Maxham, supra [the Board’s emphasis], at p. 7.)
“Pursuant to the above provisions, the Code requires the parties’ agreement before any “information” is provided to an AME. (Lab. Code, § 4062.3(c).) In contrast, when a party wishes to send a “communication” to an AME, it is necessary only to serve the opposing party with that communication. Obtaining the opposing party’s consent regarding a “communication” with an AME is not necessary. (Lab. Code, § 4062.3(f).)”
(Maxham, supra, at p. 8.)
“Only when the correspondence contains, references, or encloses “information” which the parties have not agreed to provide to the AME does it violate section 4062.3(c).”
(Maxham, supra, at p. 10.)
“We have accordingly held that sub rosa video provided to a QME constituted “information” because, “Information, such as a film or video is separate from a communication and its enclosure with a communication will not transform it into a communication.” (See Wan v. Community Health Network (San Francisco Gen. Hosp.) (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 243, p. 6.) We have similarly held that a vocational report provided to an AME at a deposition could not be a “communication” because it “also contained ‘information’ as defined in section 4062.3(a)(2).” (See Trapero v. Northern American Pneumatics (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 541, p. 9.)”
(Maxham, supra, citing Wan v. Community Health Network (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 243 (panel); Trapero v. Northern American Pneumatics (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 541 (panel), at p. 9.)
“We recognize that previous panel decisions on this issue may have created confusion regarding the precise delineation between “communication” and “information” and whether engaging in advocacy crosses that line.12 To the extent that those decisions do not comport with the above analysis of the dividing line between “information” and “communication,” we disagree with them.”
(Maxham, supra [en banc disapproval of non-conforming panel decisions; see § 1.1], at p. 12.)
“Despite our previous indications to the contrary, engaging in legitimate “advocacy” does not transform correspondence with a medical examiner from “communication” into “information.””
(Maxham, supra, at p. 12.)
“Correspondence engaging in “advocacy” or asserting a “legal or factual position” can, however, cross the line into “information” if it has the effect of disclosing impermissible “information” to the AME without explicitly containing, referencing, or enclosing it. 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.”
(Maxham, supra, at p. 12.)
“If the WCJ determines that applicant improperly provided “information” to the AMEs, he has wide discretion in fashioning an appropriate remedy for the violation of section 4062.3(c). Because this case does not involve an improper ex parte communication with an AME, removal of that AME may not be warranted.”
(Maxham, supra, at p. 13.)
“The WCJ retains wide discretion in assessing the contents of a parties’ advocacy letters to ensure parties do not serve correspondence which could confuse or misdirect the attention of a medical examiner, even if that “communication” does not expressly contain, reference, or enclose “information.””
(Maxham, supra, at p. 12.)
“Accordingly, if the correspondence 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 determination of the medical issue that the parties previously agreed to provide to the AME, serving that correspondence on the AME without giving the opposing party an opportunity to object would not violate section 4062.3(c).”
(Maxham, supra [the safe harbor: agreed-upon information], at p. 9.)
“Said differently, litigants are entitled to reference (1) records prepared or maintained by the employee’s treating physician or physicians, and (2) medical and nonmedical records relevant to determination of the medical issue in advocacy letters if the parties have previously agreed to provide that referenced “information” to the AME.”
(Maxham, supra, fn. 9, at p. 10.)
“Black’s further states that an “ex parte communication” is, “A generally prohibited communication between counsel and the court when opposing counsel is not present.””
(Maxham, supra, quoting Black’s Law Dictionary, at p. 6.)
“[W]e presume that “information” should have the same meaning in each use throughout section 4062.3, regardless of whether it references records provided to a QME or an AME.”
(Maxham, supra, fn. 8, at p. 8.)
“Ordinarily, however, advocacy letters discussing legal positions or decisions would not constitute “information” as defined by section 4062.3(a).”
(Maxham, supra, at p. 11.)
“Rule 35(d) provides that, “If the opposing party objects within 10 days of any non-medical records or information proposed to be sent to an evaluator, those records and that information shall not be provided to the evaluator unless so ordered by a Workers’ Compensation Administrative Law Judge.””
(Cal. Code Regs., tit. 8, § 35(d), as quoted in Maxham, supra, fn. 6, at p. 5.)
(Suon v. California Dairies (2018) ADJ9013590 et al., 83 Cal.Comp.Cases 1803 (Appeals Bd. en banc), at p. 2.)
“Whether a party properly served a written communication with the QME to the opposing party is a question of fact the determination of which must be supported by substantial evidence.”
(Suon v. California Dairies (2018) ADJ9013590 et al., 83 Cal.Comp.Cases 1803 (Appeals Bd. en banc), citing Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312, at p. 7.)
“Although the timelines differ for service of communications with the QME before a medical evaluation and any subsequent communications, section 4062.3(e) requires both types of communication be in writing and be served on the opposing party to avoid ex parte communication with the QME.”
(Suon, supra, construing Lab. Code, § 4062.3(e), at p. 13.)
“If a party engages in ex parte communication with the QME in violation of section 4062.3(e), section 4062.3(g) expressly provides that “the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator.””
(Suon, supra, quoting Lab. Code, § 4062.3(g), at p. 13.)
“Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve that objection.”
(Suon, supra — Holding No. 2 restated in the discussion; the holding itself is printed in the plate above, which reads “the objection.”)
“The failure to object at the first opportunity may be construed as an implicit agreement by the opposing party to provision of the information to the QME. (See e.g., U.S. Auto Stores v. Workmen’s Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469, 476-477 [36 Cal.Comp.Cases 173]; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) Additionally, the failure to object at the first opportunity may improperly permit the opposing party to learn the effect of the information on the QME’s opinions before lodging an objection.”
(Suon, supra, citing U.S. Auto Stores v. Workmen’s Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 469, 476–477; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, at p. 10.)
“When faced with a dispute regarding whether to provide information to a QME, the parties should similarly make a good faith effort to informally resolve the dispute pursuant to the 20-day period mandated by section 4062.3(b). Informal resolution of these disputes helps to progress matters in an expeditious fashion and avoid involving the Appeals Board in disputes the parties are capable of resolving without judicial intervention.”
(Suon, supra, drawing on Code Civ. Proc., § 2016.040 [the meet-and-confer declaration], at p. 11.)
“Due to this distinction, evaluation of whether a party has provided information to the QME in violation of section 4062.3(b) is an independent inquiry from the question of whether there was ex parte communication with the QME.”
(Suon, supra, at p. 14.)
“[T]rier of fact may consider include, but are not limited to, the following, as relevant: 1. The prejudicial impact versus the probative weight of the information. 2. The reasonableness, authenticity and, as appropriate, relevance of the information to determination of the medical issues. 3. The timeline of events including: evidence of proper service of the information on the opposing party, attempts, if any, by the offending party to cure the violation, any disputes regarding receipt by the opposing party and when the opposing party objected to the violation. 4. Case specific factual reasons that justify replacing or keeping the current QME, including the length of time the QME has been on the case. 5. Whether there were good faith efforts by the parties to agree on the information to be provided to the QME. 6. The constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., art. XIV, § 4.)”
(Suon, supra [the six factors bearing on the remedy for a § 4062.3(b) violation; the passage spans slip pp. 14–15 — running head and pagination marks are page furniture, not text], at p. 14.)
“Although the trier of fact may conclude that the appropriate remedy is a new QME, the trier of fact may conclude that other relief besides a new QME, or in addition to a new QME, is more appropriate for a party’s violation of section 4062.3(b) depending on the circumstances.”
(Suon, supra, at p. 15.)
““A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.””
(Evid. Code, § 641, as quoted in Suon, supra; see Minniear v. Mt. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055, 1059 (Appeals Bd. en banc), at p. 16.)
“Accordingly, if the opposing party timely objects to nonmedical records proposed to be served to the QME, those records shall not be provided to the evaluator pursuant to the plain language of section 4062.3(b) unless the trier of fact so orders.”
(Suon, supra, construing Lab. Code, § 4062.3(b), at p. 9.)
“A violation of either section 4062.3(b) or 4062.3(g) may result in an irreparable taint on the medical-legal evaluator depending on the circumstances.”
(Suon, supra, fn. 8 [the sentence is interrupted in the slip by an interposed footnote block; the two fragments are contiguous in the opinion], at p. 7.)
“Thus, evidence of service on the opposing party in accordance with sections 4062.3(b) and (e) establishes compliance by the sending party with that section.”
(Suon, supra, citing Heinlen v. Heilbron (1892) 94 Cal. 636, 640, at p. 15.)
Cross-references: § 9.6 (QME replacement); § 17.1 (discovery); § 21.8 (removal standard); § 1.1 (weight of panel decisions).
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