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Do You Have to Give Your Opposing Party the Chance to Object to Medical Records You Want to Send to the PQME?
In 2005, the process for obtaining Qualified Medical Evaluators (QME’s) in a workers’ compensation case was fundamentally changed. Instead of going to “battling QME’s”, the parties had to go through a process in which the State would send them a list of three Panel QME’s (PQME’s) and the parties, in a represented case, would each strike one and be left with one remaining doctor who would serve as the PQME in the case.
Now that there would only be one doctor in a case, there had to be rules by which the parties could communicate with and provide information to the PQME. Labor Code Section 4062.3 was passed and was intended to resolve any uncertainties as to how to both communicate and provide information to the PQME. Unfortunately, Section 4062.3 is not the picture of clarity, and it has taken years of litigation to clarify it. In fact, in 2017, the Workers’ Compensation Appeals Board (WCAB) en banc issued Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 and then in 2018, the WCAB, again on an en banc basis, issued Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803.
While these cases have been tremendously helpful in addressing the procedures applicable in communicating with and providing information to PQME’s, there is also the question of what information is ultimately allowed to be sent to the medical expert once those procedures are exhausted. For example, in several recent panel decisions, the WCAB has allowed a PQME or Agreed Medical Evaluation (AME) report properly obtained in a prior case, to be submitted to a PQME or AME in a current case on the ground that they were properly obtained in that prior case and were relevant to the issues to be decided in the current case.
More recently, the WCAB, in the panel decision of Harden v. County of Sacramento, 2019 Cal. Wrk. Comp. P.D. LEXIS 504, addressed whether two Independent Medical Evaluator’s (IME) reports obtained in the context of an industrial disability retirement proceeding could be sent to the PQME or AME in the workers’ compensation case. The panel considered Administrative Director Rule 35(e) which precludes the provision of any evaluation or consultative report other than the treating physician, the primary treating physician, secondary physician or medical-legal report that addresses permanent impairment, permanent disability or apportionment under California workers’ compensation laws.
Finding that the IME reports in question did not violate this rule, the panel ordered the reports should be sent. The panel further found that although the Section 4062.3(b) does not provide a specific timeline for the opposing party to object to the provision of medical records, the opposing party must object within a reasonable timeframe to preserve that objection (citing Suon).
In conclusion, there are two “take-aways” from recent panel cases such as Harden. The first is that you must clear all information with the opposing side of a workers’ compensation case that you intend to send to the PQME. If there is an objection, that dispute must proceed the WCAB. The second important aspect of these cases is that if the information is relevant to the issues to be decided in the case, it is likely that the information will be allowed to be sent to the PQME.
Practitioners should check the subsequent history of any cases before citing to them.
Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.
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