Grinberg: Injured Worker Can Use Phone to Record QME Exam

Wednesday, January 30, 2019 | 0

So many of our litigated workers’ compensation cases turn on the medical-legal exam.  Everyone knows that every single chiropractic qualified medical evaluators will find every injury results in 100% disability that is industrially caused, while every spine and orthopedic QME will issue a washout report. 

Gregory Grinberg

There is nothing in between and no exception. That’s why we spend so much time litigating panel issues, right? (For those not in the know, this is pure sarcasm.)

Anyhow, a lot of times the attorneys and adjusters have to speculate or rely on a QME’s report to imagine what went on during the exam. How much time did the QME really spend with the injured worker? Was applicant really exerting full effort? What was said and what was asked?

Well, earlier this year the Workers' Compensation Appeals Board issued a panel opinion in the matter of Rodriguez v. Waste Management Collection and Recycling. Therein, applicant wanted to audio record his QME examination with his phone, but the QME refused to proceed while being recorded. 

After trial on this point, the workers' compensation judge ruled that applicant may, at his own expense, have a professional court reporter present to transcribe the examination, but could not simply record it on his phone. Applicant sought reconsideration.

After the WCAB admonished applicant’s counsel (apparently for the second time) for citing an unpublished Court of Appeal decision, it ruled that pursuant to California Code of Civil Procedure Section 2032.510, the examinee may “record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.” 

However, the WCAB did reject applicant’s claims that defendant must bear the cost for applicant’s desire to record the examination.

If I were a QME, and an applicant insisted on recording my examination with him or her, I might want to do the same, just in case someone gets it in his or her head to alter the audio record.

But as the defense is always on my mind, what if defendant wanted to record the examination? Let’s say some cold-hearted defense attorney didn’t trust a particular QME and was concerned the exam wasn’t really happening, the QME was telling the injured worker what to say, or any other devious paranoid concern. Could the defense send a representative to record and observe the examination?

Well, 2032.510(a) says that the attorney’s representative may "attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.” 

But that subparagraph is limited to “the attorney for the examinee or for a party producing the examinee.” Can the defense be considered to be “producing” the injured worker for the QME exam?

Well, recall if you will the case of Porfirio Contreras v. Gibson Farms. Therein, the WCAB concurred with the WCJ that when defendant deposes an injured worker, defendant is “producing” the witness for the deposition, and so Labor Code section 5811 allows the party “producing” the witness (in this case, the defendant) to choose the interpreter.

Can that be applied here? Since defendant is paying for the transportation, the interpreter and the panel-qualified medical examiner, can it be said defendant is “producing” applicant for the med-legal examination and is thus entitled to record the exam?

After all, 2032.510(a) allows for “the examinee” or “a party producing the examinee” to record the examination. Should the statute be interpreted to mean that the examinee means the applicant, and the party producing the examine means the defendant?

I can tell you that there are plenty of times when I would have liked to be able to review exactly what was said, word for word, by the injured worker (and sometimes the QME).  There are some doctors out there who are shadier than a Sunglass Hut, and I would prefer to trust and verify.

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.