California: Communications With the AME or PQME

When do communications with the AME or PQME have to be cleared by the opposing side?

In Lopez Castaneda v. Forever 21, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, in a split panel opinion, affirmed the WCJ’s finding that the applicant was entitled to a replacement qualified medical evaluator panel in orthopedic surgery based on an advocacy letter sent by the defendant to the panel qualified medical evaluator Aubrey Swartz, M.D., referencing a portion of the applicant’s deposition testimony, when the defendant unilaterally sent the letter to Dr. Aubrey after the applicant had timely objected to deposition references in the letter pursuant to 8 Cal. Code Reg. § 35(d).

While the WCAB disagreed with the WCJ that the advocacy letter was an ex parte communication under Labor Code § 4062.3(g) since the letter was simultaneously served on the applicant, the WCAB concluded that the letter discussing the applicant’s deposition testimony constituted nonmedical information which was subject to the applicant’s objection. Furthermore, the defendant was prohibited by Labor Code § 4062.3(b) and 8 Cal. Code Reg. § 35(d) from unilaterally sending the letter to Dr. Swartz over the applicant’s objection without first obtaining an order from the WCJ.

Commissioner Razo, dissenting, found that while the applicant objected to the defendant’s reference to information derived from her deposition testimony in the advocacy letter, the letter itself was not a “nonmedical record” subject to objection under Labor Code § 4062.3(b), and that had the defendant submitted the applicant’s deposition transcript itself over the applicant’s objection, the defendant would have violated Labor Code § 4062.3(b). However, the parties had previously agreed to provide a deposition transcript to Dr. Aubrey, and Commissioner Razo found it incongruous to conclude the defendant engaged in improper conduct by referencing the applicant’s deposition testimony in the advocacy letter when the deposition transcript was part of the nonmedical information the parties agreed to provide, and that replacing Dr. Aubrey was not a proper remedy in the absence of a prohibited ex parte communication.

Commentary:

Lopez Castaneda highlights the often complex interaction between Labor Code Section 4062.3 and California Code of Regulations Title 8, Section 35. As pointed out by the panel, Labor Code Section 4062.3(a) defines “information” as both medical and non-medical records. Section 4062.3(b) provides that this “information” shall be served on the opposing party 20 days before the information is provided to the PQME. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator.

California Code of Regulations Title 8, Section 35(a) identifies the various types of “information” that can be submitted to a PQME. Section 35(b) then states that all communications shall be served simultaneously on the other party when sent to the PQME. Section 35(c) provides that the party providing medical or non-medical reports and information shall serve it on the opposing party at least twenty (20) days before the information is to be provided to the evaluator. This section continues by stating that if the opposing party objects within 10 days to 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 (WCALJ).

It is interesting that the panel in Lopez Castaneda did not find that defendant’s “position statement” to be an ex parte communication. As it was simultaneously served on opposing counsel, the panel found that it was not a prohibited communication pursuant to Labor Code Section 4062.3(g). The panel did describe the letter as “other information” that, once objected to, had to be cleared by a WCJ before it could be submitted to the PQME. Accordingly, the panel concluded, it was appropriate to order the Medical Unit to issue a replacement panel.

The panel’s conclusion that an advocacy letter that includes references to specific portions of the applicant’s deposition testimony, which is sent of over opposing counsel’s objection, does not constitute an ex parte communication misses the point. The specific questions that should have been addressed by the panel were whether (1) the communication constituted “information” per Labor Code Section 4062.3(b) and that if it did, (2) was it a violation of that same Labor Code Section when it was unilaterally sent to the PQME prior to the WCALJ’s approval?

There are several panel cases that have addressed the distinction between a “communication” and “information”. In Nehdar v. Washington Mutual, 2013 Cal. Wrk. Comp. P.D. LEXIS 221, attached to the applicant’s attorney’s correspondence to the AME was a nurse’s report which was not appropriately provided to the opposing party. In Ferniza v. Rent A Center, 2010 Cal. Wrk. Comp. P.D. LEXIS 624, like in Casteneda, the panel addressed “position statements” submitted to a Panel Qualified Medical Evaluator (PQME). Finally, in Medina v City of Huntington Park, 2012 Cal. Wrk. Comp. P.D. LEXIS 32, the panel addressed a prior version of Labor Code Section 4062.3(e) which required that both the letters to the AME and QME be cleared by the other side 20 days in advance of the examination. The panel in Medina found that the communication in question constituted “impermissible advocacy letter” due to the letter’s factual representations as well as other questionable statements.

Indeed, the difficult issue in these cases is that a given piece of correspondence, under certain circumstances, may be more than simply a “communication”. Where the body of the letter includes a party's legal or factual position, or communicates information as to the factual, relevant or operative circumstances of a case, it probably constitutes “information”. If it is “information”, and the opposing party objects, there is a very specific procedure for resolving the dispute. If the “information” is sent without going through this procedure, the party has engaged in a prohibited ex parte communication.

In conclusion, when communicating with either an AME or PQME, if the communication involves anything more than the conveyance of non-substantial information, the better practice is to send the communication to the opposing side at least 20 days prior to submitting it to the AME or PQME. If the opposing side in any fashion objects to the communication or attached information being sent to the AME or PQME, file a Declaration of Readiness to Proceed with the WCAB and do not send anything until that dispute is resolved by the WCALJ.

Read the Lopez Castaneda noteworthy panel decision.

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