When is a communication not information? Is there a distinction between the two or are there consequences from a failure to correctly categorize? The Workers’ Compensation Appeals Board, in its January 23, 2017 En Banc Decision in Maxham v California Department of Corrections, has provided the answers.
The parties agreed to use the services of three physicians, each in the capacity of AME. Mr. Maxham’s attorney sent to the employer’s counsel proposed AME letters and made inquiry whether defendant objected. In those letters, applicant’s attorney provided arguments based on several cases, such as Benson and Almaraz/Guzman and also attached a Residual Functional Capacity Form. Despite defendant’s objection, applicant’s counsel sent the letters to the physicians. The employer activated the case for Trial in order to secure a judicial determination regarding the propriety of applicant’s counsel’s actions. The WCJ held that, because the letters constituted communications pursuant to Labor Code Section 4062.3(f), rather than information pursuant to Labor Code Section 4062.3(c), there was no requirement that defendant agree with the contents of these documents before their transmission to the AME’s.
Given the absurdity of this rationale, defendant filed a timely Petition for Removal. In response, the WCJ actually recommended that the Petition be granted on the ground that the AME letters should be viewed as being both communication and information.
The WCAB agreed that Removal was appropriate under the circumstances given the obvious substantial prejudice and irreparable harm that would inure to defendant if this remedy was not provided.
In reaching its conclusion that Removal should be granted in order for the Trial Court to reassess the letters to determine whether they constituted communications or provided information to the physicians, the WCAB rendered several questionable findings:
1. Despite the explicit prohibition contained in Labor Code Section 4062.3(g), the letters did not constitute ex parte communications, based on a tortured interpretation extracted from Black’s Law Dictionary, on the ground that applicant’s counsel sent copies of the letters to defendant’s attorney. Webster’s New Collegiate Dictionary, page 469, provides the definition that ex parte is “from or on one side only of a dispute.” This definition appears to be more consistent with the Legislature’s intent, given the pollution of the AME that would occur simply by reviewing a document that was not agreed to by both parties. Additionally by giving applicant’s counsel a stay out of jail pass on this issue, she was exempt from defendant seeking a new examination by a different physician and/or being subject to sanctions pursuant of Labor Code Sections 4062.3(h) and 5813 as well as CCR Section 10561
2. In distinguishing between the terms “information” as contained in Labor Code Section 4062.3 which refers to (1) records prepared of maintained by the employee’s treating physician or physicians and/or (2) medical and non-medical records relevant to determination of the medical issues and “communication” as used in this statute, the WCAB held that a communication can constitute “information if it contains, references or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and non-medical records relevant to a determination of the medical issues.” Although applicant’s counsel’s leading AME letters did not expressly fall into either of these two categories, there are circumstances where a communication also constitutes information if that correspondence contains, references or encloses data within these two categories. The next step would be to determine if the information was prohibited based on whether the parties actually agreed that the physician should view same. Because it could not be determined whether applicant’s counsel sent impermissible information to the physicians, the matter was remanded to the Trial Court to make this finding.
3. The mere fact that applicant’s counsel included within the letters her legal position would not necessarily constitute “information.” Arguments can be made, as long as they are fairly and accurately stated. Advocacy crosses the line into the realm of information when the case or statutory law is misrepresented or the facts are misstated.
The WCAB stated, in footnote 8, that the definition of information should apply equally in cases involving AME’s and QME’s.
The moral of the story is to carefully draft your joint or advocacy letters by referring accurately to the case of statutory law which is most beneficial to the client’s interests. This has the dual purpose of alerting the physician to the issues that need to be resolved, but also, more importantly, to demonstrate to the client that you are doing everything in your power to secure a beneficial outcome. Additionally, in order to avoid creating unnecessary and time consuming issues, strive to insure that any communication directed to an AME is jointly executed. Finally, carefully scrutinize any communication directed to a physician by applicant’s counsel to insure that any advocacy arguments are fairly, accurately and honestly stated, and, if not, to timely interpose an objection, in order to preserve your client’s rights pursuant to CCR Section 35(d).