Happy Wednesday, dear readers!

Yesterday, the WCAB issued an en banc decision in the case of Maxham v. California Department of Corrections and Rehabilitation, ruling on the issue of what constitutes a “communication” as opposed to “information.”

Generally speaking, Labor Code section 4062.3 provides breaks the universe into two piles: “information” (records prepared or maintained by the employee’s treating physicians; and medical and nonmedical records relevant to determination of the medical issue) and “communication,” which is everything that is NOT information as defined above.

Information which a party proposes to send to a QME must be served on the other side 20 days prior to providing the information to the QME; as for AMEs, subsection (c) provides that “as part of their agreement on an evaluator, the parties shall agree on what information is to be provided to the agreed medical evaluator.”

By contrast, “communication” must be served like information for a QME, if provided before the evaluation.  But communication with an AME can be sent at the same time it is sent to the other side.

So what happened in Maxham?  The parties were using 3 AMEs, and applicant sent advocacy letter’s defense counsel which were to go to the AME.  Over defendant’s timely objection, the advocacy letters were sent to the AMEs.

Litigation ensued.

Ultimately, the WCAB, en banc, held that a communication can become information if it contains, references, or encloses communication.   In the instant case, the commissioners noted that the advocacy letters referenced various stipulations and wards and other documents, but it was not clear if these documents had been agreed-to, and so sent the case back down for clarification.

The WCAB did note, however, that “[c]orrespondence engaging in ‘advocacy’ or asserting a ‘legal or factual position’ can, however, cross the line into ‘information if it has the effect of disclosing impermissible ‘information’ to the AME without explicitly containing, referencing, or enclosing it.  Misrepresentations of case law or legal holdings, engaging in sophistry regarding factual or legal issues, or misrepresentation of actual ‘information’ in a case are three ways in which a party might attempt to convey purported ‘information’ to a medical examiner to which the opposing party has not agreed.”

So, what’s the take-away?  Advocacy letters should be scrutinized carefully to ensure that the sender is not violating the 4062.3.  One way to do this is simply to send the letter to opposing counsel with the log and proposed records 20 days prior to providing everything to the QME.  But, when the other side makes an objection, be careful in sending it off over the other side’s objection.

And, of course, try your best to document what you are agreeing to when you agree to an AME.