WCDefenseCA

Happy Monday dear readers!

So much of our litigated workers’ compensation cases turn on the medical-legal exam.  Everyone knows that every single chiropractic QME will find every injury results in 100% PD and industrially caused, while every spine and orthopedic QME will issue a wash-out report.  There is nothing in between and no exception.  That’s why we spend so much time litigating panel issues, right?  (For those not in the know, this is pure sarcasm.)

Anywho, a lot of times the attorneys and adjusters have to speculate or rely on a QME’s report to imagine what went on during the exam.  How much time did the QME really spend with the injured worker?  Was applicant really exerting full effort?  What was said and what was asked?

Well earlier this year the WCAB issued a panel opinion in the matter of Rodriguez v. Waste Management Collection and Recycling.  Therein, applicant wanted to audio-record his QME examination with his phone, but the QME refused to proceed with the exam while being recorded.  After trial on this point, the WCJ ruled that applicant may, at his own expense, have a professional court reporter present to transcribe the examination, but could not simply record it on his phone.  Applicant sought reconsideration.

After the WCAB admonished applicant’s counsel (apparently for the second time) for citing an unpublished Court of Appeal decision, it ruled that pursuant to California Code of Civil Procedure section 2032.510, the examinee may “record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.”  However, the WCAB did reject applicant’s claims that defendant must bear the cost for applicant’s desire to record the examination.

If I were a QME, and an applicant insisted on recording my examination with him or her, I might want to do the same, just in case someone gets it in his or her head to alter the audio record.

But, as the defense is always on my mind, what if defendant wanted to audio-record the examination.  Let’s same some cold-hearted defense attorney didn’t trust a particular QME and was concerned the exam wasn’t really happening, the QME was telling the injured worker what to say, or any other devious paranoid concerns.  Could the defense send a representative to audio-record and observe the examination?

Well 2032.510(a) allows for “that attorney’s representative … to attend and observe any physical examination conducted for discovery purposes, and to record stenographically or by audio technology any words spoken to or by the examinee during any phase of the examination.”   But that subparagraph is limited to “the attorney for the examinee or for a party producing the examinee…”  Can the defense be considered to be “producing” the injured worker for the QME exam?

Well, recall if you will the case of Porfirio Contreras v. Gibson Farms.  Therein, the WCAB concurred with the WCJ that when defendant deposes an injured worker, defendant is “producing” the witness for the deposition, and so Labor Code section 5811 allows the party “producing” the witness (in this case, the defendant) to choose the interpreter.

Can that be applied here?  Since defendant is paying for the transportation, the interpreter, and the PQME, can it be said defendant is “producing” applicant for the med-legal examination and is thus entitled to record the exam?

After all, 2032.510(a) allows for “the examinee” OR “a party producing the examinee” to record the examination.  Should the statute be interpreted to mean that the examinee means the applicant and the party producing the examine means the defendant?

I can tell you that there are plenty of times when I would have liked to be able to review exactly what was said, word for word, by the injured worker (and sometimes the QME).  There are some doctors out there that are shadier than a Sunglass Hut and your humble blogger would prefer to trust AND verify.

What do you think, dear readers?