In December 2016, EPS published a case law update regarding the WCAB decision in Lopez Castaneda v. Forever 21, (10/18/16) ADJ9667162; ADJ9793109, which discussed the adverse consequences of sending prohibited “information” to a PQME over the objection of the opposing party. Lopez Castaneda did not address the legal distinction between “information” and “communication” as used in Labor Code Section 4062.3. That issue has now been addressed by the WCAB in a unanimous en banc decision.

On January 23, 2017, the WCAB issued an unanimous en banc decision in the matter of Maxham v. California Department of Corrections and Rehabilitation; SCIF, ADJ3540065, seeking to clarify the distinction between “information” and “communication” as used in Labor Code Section 4062.3. Notably, the WCAB acknowledged that its previous panel decisions on this issue “may have created confusion regarding the precise delineation between ‘communication’ and ‘information’ and whether engaging in advocacy crosses that line.” (Emphasis added) (Maxham, p.12). The WCAB endeavored to erase this confusion in Maxham.

In Maxham, applicant’s counsel provided defendant with its proposed communication to Agreed Medical Evaluators. The advocacy letters contained factual assertions, summations of legal principles, and citations to multiple cases. Defendant objected to portions of the letters and requested that certain passages be excerpted from the letters. Applicant’s counsel sent the unedited letters to the AMEs over defendant’s objection. Defendant filed a Declaration of Readiness to Proceed.

At a Mandatory Settlement Conference, the WCJ rendered a decision in favor of the applicant and issued an Order finding the letters to the AMEs constituted “communications” under section 4062.3(f), rather than “information” under section 4062.3(c), and thus did not require defendant’s agreement before they were transmitted. Defendant filed a Petition for Removal. The WCJ recommended that the Petition be granted, noting that the letters arguably constituted both “communication” and “information” under the Labor Code, in which case the letters should not have been served on the AMEs over defendant’s objection.

The WCAB granted the Petition for Removal and decided the matter en banc “to secure uniformity of decision[s] in the future”. From the outset, the WCAB noted the fundamental difference between a “communication” and “information” under the Labor Code. Agreement by the parties is required before “information” can be transmitted to a PQME/AME. Obtaining the opposing party’s consent regarding a “communication” with a PQME/AME is not required. The WCAB framed its objective as follows: “to delineate when documents and other materials provided to an AME constitute ‘information’ rather than ‘communication’”.  (Id., at p. 8).

The WCAB held that:

  1. “Information,” as that term is used in section 4062.3, constitutes (i) records prepared or maintained by the employee’s treating physician or physicians, and/or (ii) medical and nonmedical records relevant to determination of the medical issues.
  2.  A “communication,” as that term is used in section 4062.3, 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 nonmedical records relevant to determination of medical issues. (Emphasis added) (Id. at pp.2, 13).

The WCAB explained that a given piece of correspondence, under certain circumstances, may be more than simply an act of “communication”, but may also be “information”. (Id., at p.8 (internal cites omitted)). By way of example, the WCAB noted its prior holding that sub rosa video was “information”, as was a vocational report provide to an AME. In those instances, the “communication” at issue contained, referenced, or enclosed “information” as that term is defined in section 4062.3(a). Once a “communication” is deemed to be “information” the next step is to determine whether providing that “information” to the AME was prohibited.

If the parties previously agreed to provide “information” to the AME then serving correspondence referencing that information without giving the opposing party an opportunity to object would not violate section 4062.3(c). Only when correspondence contains, references, or encloses “information” which the parties have not agreed to provide to the AME does it violate section 4062.3(c). (Id. at pp.9-10). From the record, the WCAB was unable to determine if the letters sent by the applicant’s attorney to the AME in Maxham contained prohibited information or not. Accordingly, they returned the matter to the WCJ to apply the facts of the case to the WCAB’s newly minted legal framework.

In addition to the legal framework and holding in Maxham, the WCAB’s dicta regarding the inclusion of legal positions in advocacy letters is also notable. Specifically, the WCAB did not bar or even discourage advocacy letters which contain legal positions. The WCAB stated, “[o]rdinarily…advocacy letters discussing legal positions or decisions would not constitute ‘information’ as defined by section 4062.3(a).” (Id., at p.11). “…[E]ngaging in legitimate ‘advocacy’ does not transform correspondence with a medical examiner from ‘communication’ into ‘information.’” (Id., at p.12). However, “[c]orrespondence engaging in ‘advocacy’ or asserting a ‘legal or factual position’ can…cross the line into ‘information’ if it has the effect of disclosing impermissible ‘information’ to the AME without explicitly containing, referencing, or enclosing it.” (Id.) Thus, the WCAB made clear that “legitimate advocacy” in communications with AMEs is permissible…so long as it does not “cross the line” into information.

Although the WCAB in Maxham provides some much needed guideposts for parties and judges, it is too soon to conclude that the legal distinction between “communication” and “information” has met with finality. As an example, what if one side objects to transmission of personnel records or a deposition transcript despite their clear relevance and need for review in order for the medical opinion to be substantial evidence?

The answer appears to be that Declarations of Readiness on these issues must issue. Since Maxham tells us that in certain circumstances letters can cross over from communication” to information”, will we now see a flood of DOR’s for the WCAB to decide the scope of medical legal letters until further clarification? Can we expect to see due process objections if WCJs gut medical legal letters?

Maxham illustrates that the issue is far from clear cut, will require analysis on a case-by-case, letter by letter basis going forward, and is likely not the last we have heard on this issue.   On this topic, the WCAB notes the WCJs have “wide discretion”, but as it is not imagined that the WCAB wants to be in the high volume medical legal letter review business, more clarification on the scope of what information can or cannot properly be objected to (to eliminate unnecessary objection disputes), appears to be something we should expect to see. For now, we are a step further in delineating “communications” from “information”.