A key component in the life of a workers’ compensation case, and the ability of the defense to develop critical discovery and glean a better understanding of the claimed injury, apportionment to other factors, as well as potential exposure to the case, is the use of the Panel Qualified Medical Evaluation process (PQME). Depending on the facts of the case, there are often a number of strategic considerations that must be taken into consideration.
From the defense perspective, a cost-benefit analysis must always be contemplated. It is always a primary consideration to ponder if moving to the PQME process at a particular point will likely help move the case forward and provide useful discovery to help expedite resolution of the case. The following is a brief overview of the medical-legal process, practical tips, as well as some strategic issues.
EX-PARTE COMMUNICATION PROHIBITED
First and foremost, LC 4062.3(e) states all communications with a medical evaluator before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator.
Ex-parte communication with a medical evaluator is prohibited. If a party communicates with the medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to Section 4062.2, as applicable, or proceed with the initial evaluation. The party that conducts the ex-parte communication can be responsible for paying for the med-legal exam even if it is ultimately inadmissible.
WHAT ARE THE STANDARDS FOR THE MEDICAL EVALUATION ADVOCACY LETTERS?
The case of Maxham v. Cal. Dept of Corr. & Rehab. (2017) 82 CCC 136, an en banc decision, presently is the standard as to what can be allowed in advocacy letters. Quite often the applicant’s attorney will attempt to persuade the PQME in the advocacy letter by adding specific language favorable to the applicant’s case, various legal theories, or reference cases that the physical should consider when preparing the report following the examination.
One must understand “information” and “communication” when analyzing whether an advocacy letter has crossed the line. Labor Code 4062.3 defines them as follows:
- “Information”, per LC 4062.3, is defined as (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.
- “Communication”, per LC 4062.3, can be “information” if the communication contains references or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and non-medical records relevant to determination of medical issues.
LC 4062.3 requires the parties to agree to any “information” provided to a medical evaluator, but it is not necessary to obtain the opposing party’s consent to send a “communication” to a medical evaluator.
Advocacy letters discussing legal position or decisions do not constitute “information.” Advocacy letters could contain, reference or enclose “information” that the parties previously agreed to provide to a medical evaluator without violating LC 4062.3 (c).
Correspondence engaging in advocacy or asserting a legal or factual position crosses the line into “information” without explicitly containing, referencing or enclosing that the information misrepresents case law or legal holdings; engages in sophistry regarding factual or legal issues or misrepresents actual information. That can mean that if a letter to the QME which crosses the line into “information” may be objected to by the opposing party.
Kite: Another Issue in Advocacy Letters
If the applicant’s attorney’s advocacy letter attempts to encourage the physician to increase the level of disability by referring to the “Kite” case, serious consideration should be given to an immediate objection.
The Kite case, Athens Administrators v. WCAB (Kite) 78 CCC 213 (writ denied), is merely a panel decision that, in certain circumstances, allows an increase of permanent disability by adding two different disability ratings rather than using the Combined Values Chart (CVC).
As this is only a panel decision, not an en banc or Supreme Court decision, it is not controlling. Moreover, many believe the entire theory in the Kite case is flawed. It should be pointed out that the AMA Guides states that when two or more ratings are present, in different body systems, the Combined Values Chart is to be used.
What to do when Applicant’s Attorney Attempts to Explain Almaraz/Guzman
Some applicant attorneys have very creative ways to attempt to persuade the evaluators to abandon the appropriate chapters of the AMA Guides, and instead attempt to find increased disability by referencing other chapters in the Guides by asking the physical to consider increasing the permanent disability rating amount by going outside of the AME Guides and utilizing an “Almaraz/Guzman” analysis. First, assuming an Almaraz/Guzman could even be applicable, the physician must ensure to discuss the following:
- The physician must do the strict rating correctly
- The physician must indicate that the strict rating does not adequately or accurately describe applicant’s impairment
- The physician must choose an alternate chart (other than the strict rating chart) and rate the impairment using that chart
- The physician must follow all instructions relating to that chart within the AMA Guides
- The physician must explain why the alternate chart more accurately rates the impairment that the strict rating charts
- The physician must provide a complete presentation of the supporting evidence on which he relied in reaching his conclusions, including standard texts and recent research data, if used
CHALLENGING THE ADVOCACY LETTER
If the proposed advocacy letter deviates from these Almaraz/Guzman points, an objection can be issued. Timing is important, and an objection needs to be made within 10 days of receipt of the objectionable advocacy letter.
Original Evaluation v. Supplemental Report or Re-evaluation
It should be noted that it is much more likely that a judge, or the WCAB, will rule in favor of barring the disputed advocacy letter, or granting a replacement panel for violating LC 4062(3), if the letter was sent to the QME before the initial medical exam occurred.
Conversely, judges are much less inclined to order a replacement panel when the evaluator has already issued a previous report. This is certainly case-specific, and a PQME report could be disallowed even after numerous reports have been prepared.
The chances for successfully blocking the admissibility of an unfavorable report substantially increases when the applicant’s attorney has sent an ex parte communication advocacy letter to the physician after the defense has timely objected to the contents of the advocacy letter or communication.
If the content of the information proposed to be sent to the physician is objectionable, a timely objection should be issued immediately. If the objectionable letter is ultimately sent to the physician over the defense’s objection, here are a few points to consider and appropriate steps that could be taken.
Should I Even Object to an Advocacy Letter That I Don’t Like?
Before objecting to the proposed PQME advocacy letter, one should consider whether objecting, and potentially eliminating the PQME, is in the best interests of the client and the outcome of the claim.
We have seen cases where the advocacy letter is clearly objectionable, a timely objection is issued, but the opposing attorney sends the advocacy letter and ignores the defense’s objection. This may be done in an attempt to entice the defense to object and request a PQME replacement panel. Issuance of a new three-member panel could prove more favorable to the applicant’s case. This, essentially, could provide a second bite at the apple.
Before taking any action, it is best to make a determination as to the panel physician that has been chosen in the process. Does the PQME appear to be a more neutral or conservative doctor, and which side does keeping the panel seem to benefit? 1
Many applicants’ attorneys, as well as on the defense side, are quite familiar with the types of reporting one could expect from various doctors in the PQME list of physicians. If the PQME is perceived as not an “applicant friendly” evaluator, the applicant’s attorney might be more inclined to write an objectionable advocacy letter hoping the defense will object and the PQME might be eliminated.
Regardless of what is stated in the advocacy letter, it is always hoped and expect the PQME reviewing the information and medical records will ultimately provide a clear and unbiased report on the work injury in accordance with the AMA Guides. When faced with a choice that may require obtaining a new panel, one must decide whether the risk of losing this evaluator is the best approach.
Another consideration is the potential for time delay. If the claim presents a relatively small risk of exposure, it might not be worth delaying the outcome for what could be several months to obtain a replacement panel. It may be more practical to let the PQME go forward in hopes of reaching a more prompt and reasonable resolution.
If the choice is made to object, a letter needs to be sent to the PQME, and served on the applicant’s attorney, advising that there is a disagreement with the proposed advocacy letter. This should explain the areas or issues of dispute. Hopefully, agreement can be reached as to what can be sent and what needs to be omitted. If the advocacy letter is still sent after a valid timely objection, there is now a basis to block the pending report from being used as evidence.
What to Put in the Objection Letter
If there is going to be an objection, it is best to object quickly after receipt of the advocacy letter. When issuing the objection, it is important to be clear and state with specificity the basis for the objection, and advise the opposing counsel to not send the letter with the objectionable contents. While it is best to be specific, it is actually not required.
The opposing counsel may argue that the objection must be detailed and specific as to exactly what parts are objectionable. However, there is currently nothing in the case law or labor code that provides for the objection to address everything that is disputed. Conveying the objection and advising the opposing counsel not to send the advocacy letter in its present form will suffice.
TACTICS TO CONSIDER IF OPPOSING COUNSEL SENDS AN ADVOCACY LETTER OVER OBJECTION
Contact the adjuster and explain the situation in detail with all the pros and cons. If the decision is made to challenge the sending of the advocacy letter over the objection, here are some remedies to consider:
Motion to strike the PQME report
Argue the PQME report is not substantial medical evidence as the opposing counsel has conducted an ex-parte communication with the evaluator.
Motion to strike the PQME
File a Motion to Strike the evaluator as the report, or pending report, has been tainted, there is now a negative bias, and the panel doctor must now be replaced.
Motion to Compel opposing counsel to pay for the PQME exam and report
Reserve the right to seek recovery for the cost of the PQME exam and demand opposing counsel pay for the exam. Alternatively, if payment has been made, file a lien against the case and seek recovery at the time of settlement.
File DOR for MSC
If the opposing counsel does not agree and ignores any and all objections, motions and petitions, file a DOR and move to set the matter for trial on this issue.
Motion for penalties, sanctions, and costs
If the actions from the opposing counsel have been egregious, and the advocacy letter clearly containing material and assertions not supported in the facts, or in the labor code or case law, filing a petition for penalties, sanctions and costs may be warranted.
IN CONCLUSION …
The goal is always to try and move the cases along as efficiently and cost effectively as possible with the PQME process. However, sometime the situation arises in which one party attempts to tilt the scales by including claims and assertions in the advocacy letter to the PQME that are not accurate and may be blatantly misleading. In such a situation, it may be warranted to consider the strategies and remedies outlined above.
Gary Sax is a Partner at Bradford & Barthel’s Anaheim location. If you have questions about workers’ compensation defense issues, feel free to contact Gary at email@example.com or at 714.526.9120.
1 Need assistance determining whether a PTP/PQE/AME (1) tends to write liberal/neutral/conservative reports, (2) properly applies the AMA Guides, (3) likes to use Guzman? Contact B&B’s AMA Guides File Consultation & Rating Department at firstname.lastname@example.org. We have analyzed over 30,000 reports and have insights that we would be happy to share regarding virtually every doctor whose practice includes California worker’s compensation.
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