by Jessie Zaylia
On January 23, 2017, the WCAB issued an en banc decision in the case of Maxham v. California Department of Corrections and Rehabilitation, SCIF that provides insight as to whether a party may provide an advocacy letter to a med-legal physician over an opponent’s objection. The short answer to this question is one that lawyers and clients hear too often: it depends.
The Board provided the parties with two holdings as follows (verbatim):
- “Information,” as that term is used in section 4062.3, constitutes (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues.
- A “communication,” as that term is used in section 4062.3, can constitute “information” if I it contains, references, or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues.
So, what does this mean? First, for the purposes of this case, it’s best to understand “information” as evidence—whether medical or non-medical. Second, it’s best to understand “communication” as an advocacy letter for the purposes of this case as well as for the purposes of what we do on a daily basis.
To boil the holding down, the Board essentially defined “information” as either medical or non-medical evidence, and it explained that an advocacy letter can transform into evidence if it “contains, references, or encloses” any medical or non-medical evidence. Thus, for all intents and purposes, the Maxham case supports the notion that any advocacy letter worth its salt will always “transform” into evidence because, after all, if there is any reference to medical or non-medical evidence (including any information found in pleadings, such as an applicant’s occupation, age, mechanism of injury, etc.), then such a letter becomes evidence by way of merely mentioning other evidence. In fact, under this decision, the only way that an advocacy letter could not transform into evidence is if it simply identified the name of the alleged injured worker, authorized the doctor to see the applicant on a med-legal basis, and asked the doctor to address med-legal issues; such a letter could hardly be deemed an “advocacy” letter, though, because there is no advocating for any position whatsoever is such correspondence.
Please note that, technically, the Maxham case only dealt with letters that are sent to AMEs, but the case law can easily apply to cases where PQMEs are used.
In order to not be disheartened by the holdings in the Maxham case, it is important to read the case in its entirety. The Board engages in a dance of sorts. It explains that, even if a letter becomes evidence, there is a follow-up inquiry that must be made: “Is a party prevented from sending such a letter to a med-legal physician?” The answer depends upon whether the evidence mentioned in or attached to the letter has been agreed upon (in the case of an AME) or, as an extension of the case, whether the evidence has been properly and timely objected to (in the case of a PQME). The Maxham case explains that, so long as the evidence in an advocacy letter has been agreed upon when there is an AME, then a party can send a letter to the AME that mentions or encloses such evidence, regardless of whether an opposing party objects to the letter.
The Labor Code and regulations provide that, when an AME is used, any medical and/or non-medical evidence must be agreed upon by both parties before it can be sent to the AME. Contrastingly, when a PQME is used, the standard is different; the opposing party only has the right to object to non-medical evidence within 10 days after service. If the opposing party fails to object timely, then, by default, the party may send all proposed evidence to the PQME.
It would follow then that, from the Maxham case, we can extrapolate rules that would apply in cases where a PQME is used. Hence, letters to a PQME can be sent to the med-legal physician, regardless of any objection by opposing counsel, so long as the letter only contains evidence to which the opposition has not properly and timely objected.
If opposing counsel fails to agree to evidence (in the case of an AME) or timely objects to non-medical evidence (in the case of a PQME), then the party wishing to present such evidence to the med-legal physician should file a DOR on the issue in order for a judge to determine whether such evidence may be sent to the physician.
The good news is that the Maxham case allows for advocacy letters to be sent to med-legal physicians regardless of any objection by opposing counsel, so long as the letter contains evidence that is not in dispute. Indeed, the Board explained in Maxham that the parties are within their rights to make legal arguments about undisputed evidence, and that is a good thing for all parties involved. After all, the legal system is set up to be an adversarial one for the benefit of the parties.
If you have any questions regarding the Maxham case, please contact Jessie Zaylia at firstname.lastname@example.org.