In a decision published in Lexis on December 5, 2016, the WCAB issued a split (2-1) opinion in the matter of Lopez Castaneda v. Forever 21, ADJ9667162; ADJ9793109. The opinion illustrates the adverse consequences of sending information to a PQME over the objection of the opposing party.
In its letter to the PQME, defendant in Lopez Castaneda referenced specific portions and citations to applicant’s deposition transcript. The letter was timely served on applicant’s counsel in advance of the PQME evaluation. Applicant’s counsel timely objected to the submission of nonmedical records and/or information to the doctor. Defendant then filed a Declaration of Readiness to Proceed on the issue of whether or not the letter was a “communication” and not non-medical “information” subject to objection. Before the matter was set for hearing, defendant served its letter on the PQME without redacting the objected to portions. Applicant responded with a Petition for Penalties and Request To Strike the PQME.
The WCJ held defendant’s QME letter violated Labor Code Section 4062.3(b), as the portion of the letter referring to applicant’s deposition testimony, was non-medical information subject to objection. Upon timely objection, the non-medical information should have been stricken or the issue brought before the WCAB for adjudication. A new panel was ordered.
Defendant sought reconsideration and, in a split opinion, the determination of the WCJ was upheld. Citing to Labor Code Section 4062.3 and Rule 35(c), the panel explained that both medical and nonmedical records are considered “information.” Further, “medical and non- medical records” applies to letters from attorneys that discuss medical and nonmedical information, particularly where the letter engages in advocacy.
Thus, once applicant timely objected to defendant’s proposed letter to the QME that contained a discussion of applicant’s deposition testimony, i.e. nonmedical information, defendant was prohibited from sending the letter to the QME without first obtaining an order from the WCAB. Defendant’s failure to do so resulted in a new panel.
As this case reflects, objections to letters to PQMEs cannot be ignored. If the language of the letter and information/exhibits of a non-medical nature cannot be agreed upon then the course of action is to seek judicial intervention before sending any objectionable communication or information to the evaluator. In many instances this will require postponing the PQME evaluation to obtain a WCAB ruling. The alternative, however, could be additional delay and risk in the issuance of brand new panel.