Jafary: Communication vs. Information

Friday, February 11, 2022 | 1

Parties on both sides of the workers’ compensation aisle should take care to give opponents a chance to object to proposed QME advocacy letters to avoid running into potentially sanctionable problems with Labor Code 4062.3.

Mina M. Jafary

Let’s take the following hypothetical: A panel qualified medical evaluation is coming up. As you review the file, you realize opposing counsel has already sent a letter to the PQME. You dig a bit deeper and you uncover that opposing counsel has sent the correspondence directly to the PQME and simply copied you on the letter.

By sending the correspondence directly to the PQME, opposing counsel has not allowed you time to review or object to the statements made therein. Technically, this is probably not ex parte communication because you were CC’d on the letter.

So what happens next? That’s where communication versus information comes into play. It must be determined whether opposing counsel’s letter to the PQME has crossed the line into information.

Labor Code Section 4062.3 describes the proper means by which the parties are to communicate with and provide information to the PQME. The statute defines “information” as any of the following: “[r]ecords prepared or maintained by the employees’ treating physician or physicians” or “[m]edical and nonmedical records relevant to determination of the medical issue.”

Communications are not similarly defined in the statute.

The statute requires that information be provided to the opposing party 20 days in advance of the information being sent to the PQME. The opposing party has 10 days (plus an additional five days for the mailbox rule) to object to the information being sent to the PQME. If the party objects within that time frame, the information is not to be sent to the PQME. However, communications with a QME 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. The code does not indicate that a party must allow the opposing side to object to communications.

The issue of whether a letter to a PQME is properly considered “communication” or “information” was addressed by the Workers' Compensation Appeals Board en banc in Maxham v. CDCR (82 Cal. Comp. Cases 136). The issue presented in Maxham was whether advocacy letters to an agreed medical evaluator that reference medical information within the letters properly constitute “information” or “communication.”

The WCAB found that an advocacy letter can “cross the line into ‘information’ if it has the effect of disclosing impermissible ‘information’ to the agreed medical evaluator” even if the letter does not explicitly contain, reference or enclose impermissible information.

The board held that a “communication” can actually “constitute ‘information’ if it contains, references, or encloses (1) records prepared or maintained by the employee’s treating physician or physician, and/or (2) medical and nonmedical records relevant to determination of the medical issues.”

Ultimately, the workers’ compensation judge retains wide discretion in assessing the contents of a party’s advocacy letter to ensure parties do not serve correspondence that could confuse or misdirect the attention of a medical examiner, even if that communication does not expressly contain, reference or enclose information. The judge has wide discretion in fashioning an appropriate remedy if he or she determines a party improperly provided information to the medical evaluator, such as sanctions, costs or even ordering a replacement panel if opposing counsel’s letter was so prejudicial.

In the end, it is best practice to send the opposing side correspondence to be sent to a PQME and allow the opposing side time to object, and if no objection within 20 days, to proceed.

If this procedure is not followed, there is a risk that the letter to the PQME crossed the line into information, leaving it up to the WCJ to fashion an appropriate remedy, which can sometimes prove costly.

Mina M. Jafary is an associate attorney with Bradford & Barthel’s Ontario office. This entry from Bradford & Barthel's blog appears with permission.