WCAB FURTHER DEFINES MEDICAL-LEGAL COMMUNICATION AND RECORD REVIEW (SUON and beyond):
WHERE WE NOW STAND (update MAY 2020)
(This article was published in Vol. 33, No. 1 WORKERS’ COMPENSATION QUARTERLY, of the workers’ compensation section of the State Bar California Lawyers Association)
In late October 2018, the California Workers’ Compensation Appeals Board (“WCAB”) issued an en banc opinion in the case of Suon v. California Dairies (“Suon”) addressing medical legal communication and record review. As en banc decisions are not commonplace, meant to opine on issues of importance for the workers’ compensation community, and are binding precedent on all Appeals Boards and Workers’ Compensation Judges, they are worthy of close consideration.
In Suon, the WCAB addressed in detail procedural requirements and remedies related to the transmission of information to medical-legal evaluators which either violates the Labor Code or ignores an opposing party’s timely objection (QMEs and AMEs). In so doing, the Suon court expanded on the previous en banc decision in Maxham v. California Department of Corrections and Rehabilitation (2017) 82 CCC 136 (Appeals Board en banc) which defined “information” versus “communications” that were or were not subject to objection.[END NOTE: 1]
Briefly, let’s consider the underlying facts of Suon. Three consolidated cases were in litigation when a Panel Qualified Medical Evaluation in orthopedics went forward on one of the cases. The Panel QME Dr. Weber was deposed by Applicant’s Attorney. During deposition, QME Dr. Weber indicated he wanted to review the report of the QME in psychiatry Dr. Paul and issue a supplemental report. Thereafter, defendant sent a unilateral correspondence to Dr. Weber transmitting the psyche QME report and asking that he comment on the same. No proof of service was attached to the letter although it was alleged that it was concurrently served on applicant’s attorney. QME Weber then issued a supplemental report noting his opinions remained “unchanged” after reviewing the QME Report by Dr. Paul.
Prior to the supplemental report issued by Dr. Weber, Applicant’s Attorney wrote to one defendant and advised that he had heard from a codefendant that a letter had been sent to Dr. Weber, which had not been served on his office. Applicant’s Attorney subsequently objected when he received the supplemental report from QME Dr. Weber, again alleging that he had not been served with the request for a supplemental report, such that an ex parte communication had occurred, and the worker should be able replace and exclude QME Dr. Weber from the case. At trial, the WCJ found defendant violated section 4062.3(b) and ordered a replacement panel – an appeal followed.
The en banc Board began by clarifying that an “ex parte communication” is a communication when opposing counsel is not present. Therefore, when a party violates a time frame for action but copies opposing counsel on the communication, there has not been an ex parte violation, even if there has been some other statutory violation. (Despite this, it is not unusual to hear attorneys at the WCAB alleging “ex parte” violations, which of course, were in fact not ex parte, but arguably violated some other statutory provision.)
The Suon en banc panel next addressed applicant’s argument that he was not served with the supplemental report request. The Board noted that where service is by mail, there is a rebuttable presumption it was delivered to an opposing party. However when a party objects that they were never served, the issue becomes a question of fact for the WCJ to determine whether service did in fact occur. This issue was remanded to the WCJ for further development. In the absence of a proof of service, the Board noted that defendant would need to produce other evidence suggesting applicant’s attorney had actually been served, otherwise an ex parte violation may be found. We advise that you should always include a proof of service when you are serving any records or communications on the QME or AME; or any other important document which you may need to prove was actually served should a dispute subsequently emerge.
The Board next considered non-ex parte communications that nevertheless could be found to violate the Labor Code. The Board cited Section 4062.3 which requires “information” be served on an opposing party at least 20 days prior to being sent to a QME. Similarly “communications” with a QME must also be served on a party at least 20 days in advance of an evaluation. (Section 4062.3(e)). Absent waiver, the service of communication or information on a QME with less than 20 days of notice on an opposing party is “prohibited” by the Labor Code.
In addressing the objection process of Labor Code 4062.3, the new and most relevant aspect of the Suon opinion is the Board’s determination that a party may object to the proposed transmission of medical records to medical-legal evaluators. The Labor Code is silent as to a right or method to object to medical records being sent to the QME as part of the evaluation process. The Labor Code expressly provides the right to object to non-medical records per Labor Code Section 4062.3(2)(e), and said objection must be raised no later than 20 days from service. The Code is notably silent as to any right to object to medical records. Previously, it has been posited by many that there was no right to object to the transmission of medical records to the Qualified Medical Evaluator, given the omission in the code of any prohibition or method to do so.
Post Suon, the WCAB has addressed the issue of an objection to medical records being sent to a medical legal examiner. In their split decision, Harden v. County of Sacramento, ADJ9011624 (OAK) December 13, 2019, Decision After Reconsideration (2019 Cal. Work. Comp. P.D. LEXIS 504), the WCAB applied Suon’s analysis of Labor Code section 4062.3 in its finding that an applicant’s Independent Medical Examinations (“IME”) procured solely for the application of disability retirement claim—and unrelated to the applicant’s workers’ compensation claim—could be submitted to medical legal evaluators. The majority considered many factors in their Decision, including:
- IMEs are not comprehensive medical evaluations under 4062.2 or reports obtained under 4605 or 4604(d).
- IMEs were not obtained for the IW’s workers’ compensation claim merits.
- IMEs are not being offered as comprehensive medical evaluations, so it’s irrelevant whether they are compliant with 4062.2, 4605, or 4064.
- QME rule 35(e) does not bar submission to AME or PQME, because IMEs did not address issues of WCAB awarded permanent impairment, PD, or apportionment under the California workers’ compensation law; rather, they addressed the worker’s eligibility for non-California workers’ compensation benefits, which is a completely separate process from workers’ compensation.
- After reviewing Batten, the disputed IMEs were not obtained solely to rebut a PQME’s opinion.
- After review of 4062.3(a) and Evidence Code Section 210, the majority found the disputed IMEs were relevant to determining the medical issues present in the worker’s workers’ compensation claim and therefore could be provided to the medical legal examiners&.
The concept that due process requires all relevant evidence to be reviewed appears to have weighed in to the Harden decision making. Utilizing the standard of weighing the relevance of medical records to the medical legal dispute pending moving forward would also appear to be a step to eliminating baseless objections to delay medical legal examinations or to try to shield examiners from pertinent information.
Although the Labor Code is silent on the ability to object to medical records and thus is also silent on any time frame to lodge such an objection, the WCAB has now declared that medical records may be objected to within a “reasonable time” by an opposing party in order to preserve the objection. The WCAB did not define how many days a party must wait before sending information to a QME in order to have allowed a “reasonable time” to lapse.
What constitutes a reasonable time for a party to object to medical records is sure to inspire new rounds of litigation. However, we can infer a number of factors that would likely inform this standard. First, the Labor Code provides 20 days for an opposing party to object to non-medical records being sent to a Qualified Medical Evaluator. Therefore, a reasonable time to object would presumably be 20 days or less when considering the analogous time frame of Labor Code 4062.3. Additionally, the California Civil Code incorporated by the WCAB provides 5 additional days to any act where service is by U.S. Mail. Therefore we can also infer that a party must have more than 5 days to lodge an objection following service of proposed advocacy letters or records. Thus a reasonable time would likely be at a minimum 10 days and no more than 20 days from service.
In a separate part of the decision, the Board noted that Section 4062.3(b) provides a full 20 days for a party to object and “presumably” the legislature believed 20 days was “sufficient time to review and agree on the information to be provided to the QME.” Therefore, the best practice is likely to treat all information and records as subject to the 4062.3(b) 20 day requirement regardless of whether the information may construed as a medical or non-medical record.
Additionally, the Board held a “reasonable time” can be construed as lapsing based on the actions of the opposing party. Where the opposing party fails “to object at the first opportunity [it] may be construed as an implicit agreement by the opposing party” that the information may be provided to the QME. The only example provided by the Board of implicit waiver was that a party may not object subsequent to receiving a report from a QME and determining whether it was favorable.
The WCAB has also emphasized that any time there is an objection concerning what information or communication may be sent to the QME which cannot be informally resolved, the parties should present the issue to the WCAB for a formal ruling resolving the discovery dispute.
Where a party transmits information to a QME over the objection of another party or violates the procedural time lines of the Labor Code, the aggrieved party has the option to terminate the planned report and request a replacement evaluator. However the aggrieved party must take action to replace the evaluator “within a reasonable time” to avoid a presumed waiver of their objection.
The trier of fact (WCJ) is empowered with “wide discretion” to determine the appropriate remedy for a violation of section 4062.3(b). Judges would therefore appear to be able to consider when to allow a new panel, or when to fashion a remedy to correct any procedural issues, as well as any ancillary remedies for having to address the issue. In doing so, the Board advised that a judge is to consider six (6) factors in determining whether to replace a QME following an objection or violation of section 4062.3(b) regarding information sent to the QME. The factors include:
- “The prejudicial impact versus the probative weight of information.
- The reasonableness, authenticity, and, as appropriate, relevance of the information to the determination of the medical issues.
- The timeline of events including: evidence of proper service of the information on the opposing party, attempts, if any, by the offending party to cure the violation, any disputes regarding receipt by the opposing party and when the opposing party objected to the violation.
- Case specific factual reasons that justify replacing or keeping the current QME, including the length of time the QME has been on the case.
- Whether there were good faith efforts by the parties to agree on the information to be provided to the QME.
- The constitutional mandate to accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character.” [internal citation and quotation omitted]
The Suon en banc panel ultimately remanded the case so that the trier of fact could determine whether defendant’s request for a supplemental report to Dr. Weber was an ex parte communication. As we know there was no proof of service attached to the letter, additional fact finding may need to occur.
In the event the trier of fact found no ex parte communication occurred, the Judge was directed to next address the 4062.3(b) violation as defendant had not waited 20 days to send the records to the QME. The Judge was ordered to fashion an appropriate remedy based on the multi factor test provided by the Suon Board. Considering the QME had requested to review the medical-legal report in deposition and then had issued a supplemental report not changing any of his opinions, it would not appear that the Suon multi factor test would support removing or replacing QME Weber in the instant matter.
There are several important take-aways from the Suon decision for Claims Professionals and Attorneys.
- An “ex parte” violation only occurs where information is communicated to the QME without notice to opposing parties. In other words, you find out after the fact that an opposing party has communicated with the QME or AME.
- Where an ex parte violation occurs, the remedy for the aggrieved party is to replace the evaluator and obtain a new evaluation. Please note that even where there is an ex parte violation, if the aggrieved party does not take affirmative action within a reasonable amount of time, there may be found to be waiver. In other words, an aggrieved party should move with alacrity to replace the QME should they so desire or face an argument of waiver from opposing counsel.
- A violation of Labor Code 4062.3(b) occurs when a party transmits “information” to a QME without waiting 20 days for the opposing party to object; or if a party transmits information over the objection of the opposing party without resolving the dispute informally or through adjudication at the WCAB.
- Parties must engage in an informal meet and confer effort prior to filing a declaration of readiness to proceed seeking the intervention of the WCAB. This is consistent with the Civil Discovery Act which acts as guidance for workers’ compensation litigation.
- Where parties cannot informally resolve a dispute concerning what information or records can be sent to the QME, the WCJ is empowered to address and resolve the discovery dispute.
- Where there has not be an ex parte communication, but there has been a violation of the 20 day rule contained in 4062.3(b), a WCJ has wide discretion in fashioning the appropriate remedy and is directed to consider 6 factors in making their determination.
- A party aggrieved by a decision of the WCJ concerning the QME/AME process may file for Removal with the Workers’ Compensation Appeals Board.
In continuing on from Maxham, the WCAB has now further refined issues of medical legal communications and record review. The issue of potential objections to medical records is one that bears watching as the findings in this matter involving a psychological QME may be fact specific to this case, rather than intended to serve as a blanket allowance of objection to medical records. Such objections of course mean that WCJs will become more involved with the scope of what can be provided to a medical legal examiner. This would seem to give rise to the need for fact finding in advance of a medical legal exam, which creates more, rather than less litigation surround the medical legal process. Preclusion of medical records from the QME review would likely lead to due process or unsubstantial medical evidence arguments, such that we likely see additional decisions addressing the scope of any such objections.
END NOTE:  In Maxham, the Appeals Board en banc advised that interactions between parties and medical-legal evaluators should be categorized as either “Information” or “Communication.” The Appeals Board defined “Information” as records prepared by applicant’s treating physicians (i.e. medical records) or other medical and non-medical records relevant to the determination of medical issues. A “communication,” conversely, would be a letter or oral communication not referencing information contained in medical or non-medical records. A communication would be transformed into “information” if it referenced content contained within medical or non-medical records. (Please see prior EPS article re Maxham; www.eps-law.com)
 Considering the relevance, due process and other considerations and reasoning cited in Harden, this would seem to confirm that Longshore and Harbor Workers’ Compensation Act (LHWCA) evaluations, as well as other medical records and reporting that are relevant to pending workers’ compensation issues, would be permissible to transmit to the medical legal examiner, but those medical reports or records would not otherwise be the basis for an Award or denial of any benefits. Such reports or records would simply constitute relevant information for a medical legal examiner to review and consider.
 As a practical matter, there has been a concern among both Applicant and Defendant practitioners that “blanket objections”, or objections without an articulable or good faith basis, have been inappropriately used to delay the medical legal process and extend a matter’s current status. This tactic has the effect of forcing the cancellation of medical legal exams and causing the need to seek WCAB intervention to address objections, lest a party run afoul of improper transmission. Although this tactic many times does not result in a WCAB Decision because objections are later withdrawn, and in consideration of the economics in acquiescing to a delayed medical legal date that may actually occur before the WCAB can reach the merits of the objections (and thus the success of the delay), it is imagined that the WCAB may take up a matter giving guidance on the scope and basis for medical legal letter and exhibit objections, as well as fashioning a remedy which may be akin to a civil discovery Motion, wherein those who acted without substantial justification may face discovery sanctions.
 In Dollemore v. Wayne Perry, Inc./Starr Surplus Lines, ADJ10452831 (AHM), November 9, 2018, Decision After Removal (Unpublished; CWCR-February 2019), the WCAB addressed the issue of impermissible ex parte communication and the timing needed for such an objection. In this matter, an ex parte communication to the PQME was learned of on September 6, 2017 and the Petition to Remove the PQME was filed on February 8, 2018 (5 months). The WCAB granted removal and remanded the case to the Trial level to determine whether the objection had been done in a reasonable time, and whether the objecting party had engaged in conduct inconsistent with an election to disregard the evaluation after learning of the ex parte communication. Also of note regarding the merits of any ex parte communication, the WCAB indicated that “an ex parte communication may be so insignificant that any resulting repercussion would be unreasonable”.