Cortez v International Resources Group

Can a physician’s report be thrown out where one party communicates with the practitioner? Where a physician issues opinions contrary to a party’s interests, efforts are frequently undertaken to have that report never see the light of day in Court and to secure a second bite at the apple from another physician. In Cortez v International Resources Group 2017 Cal. Wrk. Comp. P.D. LEXIS 60, the employee alleged two CT injuries involving his head, neck, back, knees, psyche and upper extremities. Dr. Einbund was selected as the orthopaedic AME to address all issues. After the appointment had been set, defendant’s attorney sent an innocuous letter pertaining to clerical issues to the AME. A copy of that letter was sent to applicant’s counsel. A report detrimental to Garcia’s interests was generated and his attorney sought to have Dr. Einbund’s conclusions deemed inadmissible, and to secure a report from another physician. The WCAB sustained the Trial Court’s finding that Cortez was not entitled to a report from another physician. It was held that the communication was not ex parte because a copy was sent to applicant’s counsel. Citing the recent decision in Maxham v California Department of Corrections 2017 CAL. Wrk. Comp. P.D.LEXIS 6, the Court stated that the letter did not contain any information that would have required an agreement. Labor Code Section 4062.3 was interpreted as defining “information” as records prepared or maintained by the employee’s treating physician or medical and non-medical records relevant to a determination of a medical issue.