The parties agreed to utilize Doctors Abeliuk, Johnson, and Lapins as AMEs in this case.
Applicant’s counsel provided defendants with draft copies of letters to the AME’s asking if defendants had an objection to them. The defendants objected to all the letters and asked applicant’s counsel to redraft and send the letters back for review. But applicant’s counsel then sent these letters to the AMEs over their objections.
A hearing was set to resolve issues related to applicant’s submission of the advocacy letters.The parties specified the following issue to be decided: “Whether applicant counsel’s letter to Drs. Johnson, Abeliuk and Lapins constitutes ‘other information’ as contemplated by Labor Code § 4062.3 and 8 CCR § 35.”
The WCJ found that the letters to Doctors Lapins, Abeliuk, and Johnson constituted “communications” under section 4062.3(f), rather than “information” under section 4062.3(c), and thus did not require defendants’ agreement before they were sent. Specifically, the WCJ found that section “4062.3(f) controls and when ‘communications,’ including advocacy letters, are sent to an AME, they need only be served on the opposing party.”
The defendant filed a Petition for Removal. The WCJ recommended that the petition be granted “because applicant’s letter arguably constituted both a “communication” and “information” under the Labor Code, it likely should not have been served on the AMEs over defendants’ objection without an order from the WCJ.” Thus the WCAB granted the Petition for Removal in the En Banc case of Maxham v California Department of Corrections and Rehabilitation Service, and return this matter the trial level for further development of the record after clarifying the law on this issue.
The Labor Code requires the parties’agreement before any “information” is provided to an AME. (Lab. Code, § 4062.3(c).) In contrast, when a party wishes to send a “communication” to an AME, it is necessary only to serve the opposing party with that communication. Obtaining the opposing party’s consent regarding a “communication” with an AME is not necessary. (Lab. Code, § 4062.3(f).)
Because of the tension between these provisions, it is important to delineate when documents and other materials provided to an AME constitute “information” rather than “communication.” Section 4062.3(a) defines “information” as follows: “(1) Records prepared or maintained by the employee’s treating physician or physicians[,]” or “(2) Medical and nonmedical records relevant to determination of the medical issue.”
At first blush, applicant’s advocacy letters to the AMEs should constitute “communication” because they do not fall into one of the two categories of records that characterize “information,” as that term is defined in section 4062.3(a). however, that “[a] given piece of correspondence or a letter to a party, under certain circumstances, may be more than simply an act of ‘communication.’ It may also be ‘information.’ … We have accordingly held that sub rosa video provided to a QME constituted “information” because, “Information, such as a film or video is separate from a communication and its enclosure with a communication will not transform it into a communication.”
“We disagree with defendants, however, that applicant’s letters to the AMEs constitute “information” simply because the body of the letter itself included the applicant’s legal position.” “…advocacy letters discussing legal positions or decisions would not constitute “information” as defined by section 4062.3(a).
Correspondence 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. Misrepresentation 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. The WCJ retains wide discretion in assessing the contents of a parties’ advocacy letters to ensure parties do not serve correspondence which could confuse or misdirect the attention of a medical examiner, even if that “communication” does not expressly contain, reference, or enclose “information.”
“We recognize that previous panel decisions on this issue may have created confusion regarding the precise delineation between “communication” and “information” and whether engaging in advocacy crosses that line. To the extent that those decisions do not comport with the above analysis of the dividing line between “information” and “communication,” we disagree with them. Despite our previous indications to the contrary, engaging in legitimate “advocacy” does not transform correspondence with a medical examiner from “communication” into “information.””