Home > Uncategorized > WCAB Rules Facebook Profile Should Not Have Been Sent to PQME over AA’s Objection

WCAB Rules Facebook Profile Should Not Have Been Sent to PQME over AA’s Objection

Hey there dear readers – do you love surfing Facebook, Twitter, and all sorts of other social media?  Does your boss tell you that you can’t do that at work because it isn’t work?  That’s lame, maaaaaaan – a real drag!

Well, what if I told you that you can now combine business with pleasure and surf Facebook at work?

In a manner of speaking, if you’re looking to deal with your claims, you almost have to.

Facebook isn’t for college kids anymore – just about everyone and everyone’s mother is on it.  It’s not just for stalking ex-girlfriends and ex-boyfriends anymore either – folks promote their businesses on there.  They find business contacts.  In less professional fields, there is a pretty strong level of marketing and networking that goes on through Facebook groups.

The same is true, to some extent, for just about every other form of social media.

So what has your “injured” applicant been up to lately?  Is he starting a business? Is he competing in weightlifting competitions while on TTD?

What made me think of all this stuff (again) was a recent case that came up – Pecoraro  v. PT Gaming, a panel decision which has a whole lot of issues going on.

Applicant alleged a right shoulder injury as a CT.  After the parties selected a QME and set an evaluation date, defense counsel provided applicant with a cover letter, medical records log, Facebook profile, and sub rosa video which he intended to provide to the PQME.  As the panel opinion discusses, apparently, over applicant’s objection, defendant provided the Facebook profile to the QME.

Applicant then set a hearing and proceeded to trial on the issue, seeking to strike the PQME’s report and requesting a replacement panel.  The WCJ found no impermissible evidence was reviewed and denied applicant’s request for a new panel.  The petition for reconsideration followed.

After the recon petition, defense counsel appeared before the WCJ to walk through a C&R, presumably with applicant having dismissed his attorney.  The C&R was ordered approved by the WCJ and prompted a second petition for reconsideration.

The WCAB held that sending non-medical information to the PQME over applicant’s objection was a violation of Rule 35(d).  The finding that the PQME did NOT review impermissible documents was rescinded and the matter was returned “to the trial court for further proceedings consistent with the opinion.”

As to approving the C&R, the WCAB noted that the WCJ may have been stripped of jurisdiction to approve the C&R based on applicant’s first petition for reconsideration.   The WCAB also cast doubt on applicant’s dismissal of his attorney and ordered further discovery on this point.

So, a few thoughts on this one.

As to the panel issue, it seems like an objection to non-medical records being provided to a QME does warrant further review by a WCJ, but let’s look at the situation step by step.  If the defense provides objected-to records to the PQME, but the WCJ, at a subsequent hearing, rules that there is no basis to keep this information from the QME, what harm was done by sending the records?  If there is no harm done, why would the PQME be “poisoned”?

What’s more, what possible reason could there be to exclude an applicant’s Facebook profile from the eyes of the PQME?  When applicant shouts from the mountain-tops “X Y Z!” by posting it on Facebook, why can’t the QME review it?

As to the OAC&R, if an applicant has dismissed his attorney, the only possible reason to question this is to suggest that the defense attorney somehow engaged in fraud.  Are we SERIOUSLY getting to the point that we are accusing officers of the court of falsifying documents?  Does anyone think that a defense attorney would risk his career and his reputation (I’ve found that in a small community like Workers’ Compensation litigation, the two are one and the same) to get a single file closed?

And, of course, Facebook is a total goldmine for us.  Whether you decide to send the Facebook profile to the PQME over applicant’s objection or after getting an Order, this is a resource you should not overlook in every file that’s heading down litigation lane or represented road.

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  1. Larry Whiting
    January 16th, 2017 at 11:48 | #1

    What is not mentioned is that, as unfair and encumbred as it is, we have a process that covers this situation. Although we can assume that correctly filing for an expedited hearing on the discovery motion would have resulted in a finding that the Facebook Profile could be sent, failure to go thru the necessary steps is not excused. (Although, as an Applicant’s atty, I also agree that an assumedly lying applicant should not skate on a technicallity.) I think a fair result would be a finding re the admissability of the info and sanctions against the defense atty.

    • Gregory Grinberg
      January 17th, 2017 at 16:38 | #2

      Hi Larry – I don’t think sanctions are warranted on something like this. I have had procedural or technical violations performed by applicants’ attorneys and some WCJs expect me to establish some sort of prejudice before taking any corrective action. What is good for the goose is good for the gander – unless an AA can show HOW this procedural violation (basically showing the QME what applicant says on his Facebook page) UNFAIRLY prejudiced applicant, sanctions are not appropriate.

      But, then again, I’m seeing this from the point of view of a defense attorney.

  2. Arlene Lea
    January 17th, 2017 at 09:28 | #3

    An AA objected to submission to a PQME of State Farm records related to a prior auto accident which included bills showing Dx codes, but no medical reports. I called AA saying the PQME can see them now or after the exam to issue a supplemental, but he will see them. We agreed to send excerpts of the bills with Dx codes and police report. I’d like to see modification of the code to allow non-medical records it they are available to the general public, such as Facebook, twitter, etc.

    • Gregory Grinberg
      January 17th, 2017 at 16:39 | #4

      I couldn’t agree more!

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