Bradley Maxham v. California Department of Corrections and Rehabilitation; State Compensation Insurance Fund

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1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 Case No. 4 ADJ3540065 (SAC 0361552) BRADLEY MAXHAM, 5 Applicant, 6 vs. 7 8 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; STATE COMPENSATION INSURANCE FUND, OPINION AND ORDER GRANTING PETITION FOR REMOVAL AND DECISION AFTER REMOVAL (En Banc) 9 Defendants. 10 11 12 Defendants California Department of Corrections and Rehabilitation and State Compensation 13 Insurance Fund seek removal in response to an Order (Order) issued by the workers’ compensation 14 administrative law judge (WCJ) on June 2, 2016. In the Order, the WCJ found that applicant’s counsel 15 did not violate Labor Code 1 section 4062.3 or WCAB Rule 35 (Cal. Code Regs., tit. 8, § 35) because she 16 served defendant with copies of letters she sent to three Agreed Medical Evaluators (AMEs) in this case. 17 Defendants contend that removal is appropriate because the Order will cause significant prejudice 18 and irreparable harm by permitting the three AMEs to consider “information” submitted by applicant’s 19 attorney without defendants’ approval, thus almost certainly resulting in biased AME reports. 20 (Petition, p. 2, ln. 1-5.) 21 We received an Answer from applicant. The WCJ filed a Report and Recommendation on 22 Petition for Removal (Report) on July 1, 2016, recommending that the Petition be granted, the Order be 23 rescinded, and the matter returned to him to consider the issue of whether the “communications” sent by 24 applicant also constituted “information.” (Report, p. 3.). 25 26 27 1 Unless otherwise stated, all further statutory references are to the Labor Code. 1 To secure uniformity of decision in the future, the Appeals Board, upon a unanimous vote of its 2 members, assigned this case to the Appeals Board as a whole for an en banc decision. 3 (Lab. Code, § 115.) 2 4 5 Based upon our review of the record, defendants’ Petition for Removal, applicant’s Answer, the contents of the WCJ’s Report, and the relevant statutes and case law, we hold that: 6 1. “Information,” as that term is used in section 4062.3, constitutes (1) records prepared or 7 maintained by the employee’s treating physician or physicians, and/or (2) medical and 8 nonmedical records relevant to determination of the medical issues. 9 2. A “communication,” as that term is used in section 4062.3, can constitute “information” if 10 it contains, references, or encloses (1) records prepared or maintained by the employee’s 11 treating physician or physicians, and/or (2) medical and nonmedical records relevant to 12 determination of the medical issues. 13 14 For the reasons discussed below, we thus grant defendants’ Petition for Removal, rescind the Order, and return this matter to the trial court for further proceedings consistent with this opinion. 15 I. BACKGROUND 16 The parties agreed to utilize Doctors Abeliuk, Johnson, and Lapins as AMEs in this case. 17 On October 28, 2015, applicant’s counsel provided defendants with draft copies of letters to Doctors 18 Johnson and Abeliuk, asking if defendants had an objection to them. (March 25, 2016 Petition for Costs, 19 Ex. A.) The same day, defendants responded that they objected to both letters and asked applicant’s 20 counsel to redraft and send the letters back for review. (Id., Ex. B.) Defendants contend that applicant’s 21 counsel then sent these letters to Doctors Abeliuk and Johnson over their objections. 22 (Petition, p. 3, ln. 4-7.) 23 24 2 25 26 27 En banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and WCJs. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 313, fn. 5 [70 Cal.Comp.Cases 109]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418 [67 Cal.Comp.Cases 236]; see also Gov. Code, § 11425.60(b).) In addition to being adopted as a precedent decision in accordance with Labor Code section 115 and Appeals Board Rule 10341, this en banc decision is also being adopted as a precedent decision in accordance with Government Code section 11425.60(b). MAXHAM, Bradley 2 1 On November 18, 2015, applicant’s counsel sent defendants’ counsel a draft of a letter to 2 Dr. Lapins and asked if there was an objection. (March 25, 2016 Petition for Costs, Ex. D.) Defendants 3 objected to the proposed letter to Dr. Lapins on November 20, 2015. 4 defendants requested that the following excerpted portions of the November 18, 2015 letter to Dr. Lapins 5 be deleted: 7 ... 8 In order for your opinion to be considered substantial evidence, you must give an opinion as to the cause of the overall permanent disability. If the cause of the permanent disability is inextricably intertwined between all of the injuries such that a separate opinion of causation would be speculative, it may be that you cannot divide up causation. If that is true, then a statement to that effect and the rationale is needed. Please be sure to indicate your opinion as it relates to Mr. Maxham specifically. 9 10 11 12 13 The Benson[ 3] court recognized that because period of healing (TD) may have a synergistic effect, it may be speculative to parse out the cause of permanent disability among several injuries with overlapping periods of TD. The court also re-affirmed that all apportionment must be supported by substantial evidence. 14 15 16 Please recall under Almarez-Guzmann II[ 4] [sic], in determining the whole person impairment (WPI) the physician is allowed to utilize any chapter, table, or method in the AMA guides that most accurately reflects the injured employee’s impairment. Creative use of the guides, such as finding additional or alternative impairment analysis from other chapters of the Guides is allowable in order to reach and [sic] fair and accurate whole person impairment. The AMA guides expressly “contemplate that a physician will use his or her judgment, experience, training and skill in assessing WPI.” 17 18 19 20 21 In City of Sacramento v. Arthur Cannon,[ 5] the Court of Appeal expanded further on Almaraz/Guzman II holding that “rating by analogy” is not only permissible but it is within the physician’s legislative directive to achieve a fair and accurate impairment rating. In Cannon, the agreed medical examiner determined that the 22 23 25 26 27 Specifically, Please note that because of statutory limit of 104 weeks, no additional TD payments will be made to Mr. Maxham. 6 24 (Id., Ex. E.) 3 Benson v Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc). 4 Almaraz v. Environmental Recovery Services / Guzman v. Milpitas Unified School District (2009) 74 Cal.Comp.Cases 1084 (Appeals Board en banc), affirmed by Milpitas Unified School Dist. v. Workers’ Comp. Appeals Board (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (modified on other grounds on September 1, 2010). 5 City of Sacramento v. Workers’ Comp. Appeals Bd. (Cannon) (2013) 222 Cal.App.4th 1360 [79 Cal.Comp.Cases 1]. MAXHAM, Bradley 3 applicant’s left foot condition, plantar fasciitis, was equivalent to a limp with arthritis. The court reasoned that there is nothing in the 2004 amendment to section 4660 that precludes finding of impairment based on subjective complaints of pain where no objective abnormalities are found. In addition, the condition need not be extraordinary or complex in order to apply “the four corners of the guide.” If you do not use other sections of the guides, please explain how and why you did not. Likewise, if you do not use the “four corners” to achieve a fair and accurate WPI, please explain how and why. 1 2 3 4 5 6 Lastly, with the goal of provide [sic] the “most accurate impairment rating,” please consider the impact of the permanent disability on Mr. Maxham’s Activities of Daily Living and Functional Limitations. ADL’s should include those involving self-care, work, house making and leisure. I am also enclosing the Residual Functional Capacity Assessment form, please complete this so that the parties can determine return to work issues as well as the impact of the injury on Mr. Maxham’s future earning capacity and/or ability to benefit from vocational rehabilitation. 7 8 9 10 11 12 (Id., p. 2-3 [emphasis in original and footnotes added].) On November 23, 2015, applicant’s counsel 13 stated that she would be submitting the letter to Dr. Lapins over defendants’ objection. (Id., Ex. F.) 14 On December 17, 2015, defendants filed a Declaration of Readiness to Proceed, seeking to 15 resolve issues related to applicant’s submission of the advocacy letter to Dr. Lapins without defendants’ 16 approval. 17 Trial Conference Statement, May 17, 2016, p. 1.) The parties specified the following issue to be decided: 18 “Whether applicant counsel’s letter to Drs. Johnson, Abeliuk and Lapins constitutes ‘other information’ 19 as contemplated by Labor Code § 4062.3 and 8 CCR § 35.” (Id., p. 3.) At the close of the Mandatory 20 Settlement Conference, the WCJ ordered that, “The 3 letters listed under exhibits on page 5 are ordered 21 into evidence. The issue described on page 3 stands submitted for decision.” (Id., p. 1.) On May 17, 2016, the parties met for a Mandatory Settlement Conference. (Pre- 22 On June 2, 2016, the WCJ rendered a decision in favor of applicant, finding that the letters to 23 Doctors Lapins, Abeliuk, and Johnson constituted “communications” under section 4062.3(f), rather than 24 “information” under section 4062.3(c), and thus did not require defendants’ agreement before they were 25 sent. 26 ‘communications,’ including advocacy letters, are sent to an AME, they need only be served on the 27 opposing party.” (Opinion on Decision, p. 4.). (Order, p. 1.) Specifically, the WCJ found that section “4062.3(f) controls and when MAXHAM, Bradley 4 1 Defendants filed a Petition for Removal seeking review of the Order on June 27, 2016. 2 Defendants contend that applicant’s letters “should be classified as ‘information’ and not merely a 3 ‘communication’ because [they are] ‘non-medical record[s] relevant to the determination of the medical 4 issue.’” (Petition, p. 3:19-21.) Specifically, defendants contend that 5 The advocacy letter in this case . . . should be classified as information as opposed to communication because the body of the letter itself included the applicant’s legal position. The case law and its analysis submitted by applicant’s counsel in her advocacy letter is not the mere holding of a workers’ compensation landmark case; instead the information submitted goes above and beyond and has the effect of directing the AME in forming a favorable report. 6 7 8 9 (Id., p. 5:1-6 [emphasis in original].) The WCJ issued his Report on July 1, 2016. 10 In the Report, the WCJ recommended that 11 defendants’ Petition be granted. Specifically, the WCJ stated the following reasons that applicant’s 12 letters might be considered “information”: 13 Here, the October 14, 2015 letter in dispute notes that a Findings and Award dated November 7, 2012 was attached. Moreover, the letter makes specific reference to medical reports that are part of the current record (Dr. Pattison’s November 11, 2013 report). Finally, the letter purportedly also attached a Residual Functional Capacity Assessment form sent “so that the parties could determine the return to work issues as well as the impact of the injury on applicant’s future earning capacity.” 14 15 16 17 In addition to the attachments, the letter also contained both legal and factual assertions to which defendant might have wanted to object. 18 19 20 (Report, p. 3.) The WCJ concluded that because applicant’s letter arguably constituted both a 21 “communication” and “information” under the Labor Code, it likely should not have been served on the 22 AMEs over defendants’ objection without an order from the WCJ. 6 (Id.) 23 /// 24 /// 25 6 26 27 Rule 35(d) provides that, “If the opposing party objects within 10 days of any non-medical records or information proposed to be sent to an evaluator, those records and that information shall not be provided to the evaluator unless so ordered by a Workers’ Compensation Administrative Law Judge.” (Cal. Code Regs., tit. 8, § 35(d).) We do not address applicability of Rule 35 in this opinion. MAXHAM, Bradley 5 1 II. DISCUSSION 2 Removal is an extraordinary remedy rarely exercised by the Appeals Board. 7 (Cortez v. Workers’ 3 Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. 4 Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133].) The 5 Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable 6 harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10843(a); see also Cortez, supra, 7 136 Cal.App.4th at 600, fn.5; Kleemann, supra, 27 Cal.App.4th at 281, fn. 2.) The petitioner must also 8 demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the 9 petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10843(a).) Defendants contend that substantial 10 prejudice and irreparable harm will result from the Order because the AMEs in this case will be 11 permitted to consider biased “information” submitted solely by applicant when drafting their reports. 12 Because we are presently unable to determine whether applicant’s counsel provided impermissible 13 “information” to the AMEs, and are thus unable to determine whether defendants will suffer substantial 14 prejudice and irreparable harm, we will grant defendant’s Petition for Removal and return this matter to 15 the trial level for further development of the record. 16 Preliminarily, this case does not involve a prohibited “ex parte communication” under section 17 4062.3(g). Black’s Law Dictionary defines “ex parte” as, “On or from one party only, usually without 18 notice to or argument from the adverse party.” (Black’s Law Dict. (7th ed. 1999) p. 597, col. 2.) Black’s 19 further states that an “ex parte communication” is, “A generally prohibited communication between 20 counsel and the court when opposing counsel is not present.” (Id. [emphasis added].) Here, it appears 21 undisputed that applicant copied defendant on each of the communications with the AMEs. Because 22 defendants’ counsel was copied on all communications with the AMEs, those communications cannot be 23 said to be “ex parte.” 24 25 26 27 7 The Order constituted an evidentiary decision determining whether applicant’s advocacy letters constituted a “communication” or “information” pursuant to section 4062.3. It is not a “final” order because it does not determine a substantive question or right. (Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075 [65 Cal.Comp.Cases 650]; Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180.) As such, removal rather than reconsideration is the proper avenue for defendant to seek review of the Order. (Capital Builders Hardware, Inc. v. Workers’ Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662.) MAXHAM, Bradley 6 1 Instead, this case addresses whether applicant violated section 4062.3(c)’s requirement that the 2 parties agree on what “information” is to be provided to an AME. Sections 4062.3(a) – (f) govern the 3 procedures applicable to “information,” “communication,” and medical evaluators. 4 provide as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 These sections (a) Any party may provide to the qualified medical evaluator selected from a panel any of the following information: (1) Records prepared or maintained by the employee’s treating physician or physicians. (2) Medical and nonmedical records relevant to determination of the medical issue. (b) Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator. Either party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation. (c) If an agreed medical evaluator is selected, as part of their agreement on an evaluator, the parties shall agree on what information is to be provided to the agreed medical evaluator. (d) In any formal medical evaluation, the agreed or qualified medical evaluator shall identify the following: (1) All information received from the parties. (2) All information reviewed in preparation of the report. (3) All information relied upon in the formulation of his or her opinion. (e) All communications with a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator. (f) Communication with an agreed medical evaluator shall be in writing, and shall be served on the opposing party when sent to the agreed medical evaluator. Oral or written communications with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communications in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication. 27 MAXHAM, Bradley 7 1 (Lab. Code, § 4062.3 [emphasis added].) Pursuant to the above provisions, the Code requires the parties’ 2 agreement before any “information” is provided to an AME. (Lab. Code, § 4062.3(c).) In contrast, when 3 a party wishes to send a “communication” to an AME, it is necessary only to serve the opposing party 4 with that communication. Obtaining the opposing party’s consent regarding a “communication” with an 5 AME is not necessary. (Lab. Code, § 4062.3(f).) 6 Because of the tension between these provisions, it is important to delineate when documents and 7 other materials provided to an AME constitute “information” rather than “communication.” As with any 8 question of statutory interpretation, we begin with the language of the statute. (Horwich v. Superior 9 Court (1999) 21 Cal.4th 272, 276, quoting People v. Pieters (1991) 52 Cal.3d 894, 898-899.) Section 10 4062.3(a) defines “information” as follows: 11 “(1) Records prepared or maintained by the employee’s treating physician or physicians[,]” or 12 “(2) Medical and nonmedical records relevant to determination of the medical issue.” 13 (Lab. Code, § 4062.3(a).) “Where the same word is used in more than one place in a legislative 14 enactment, we presume the same meaning was intended in each instance.” (Castro v. Sacramento 15 County Fire Prot. Dist. (1996) 47 Cal.App.4th 927, 932, citing Cano v. State Bd. of Control (1992) 16 7 Cal. App.4th 1162, 1165.) We accordingly conclude that the term “information” as used throughout 17 section 4062.3 means either (1) records prepared or maintained by the employee’s treating physician or 18 physicians, or (2) medical and nonmedical records relevant to determination of the medical issue. 8 19 At first blush, applicant’s advocacy letters to the AMEs should constitute “communication” 20 because they do not fall into one of the two categories of records that characterize “information,” as that 21 term is defined in section 4062.3(a). We have previously explained, however, that “[a] given piece of 22 correspondence or a letter to a party, under certain circumstances, may be more than simply an act of 23 ‘communication.’ It may also be ‘information.’” (See Nehdar v. Washington Mutual (2013) 2013 Cal. 24 8 25 26 27 We note that section 4062.3(a) defines “information” in the context of records to be provided “to the qualified medical evaluator selected from a panel,” otherwise known as a panel QME. (Lab. Code, § 4062.3(a).) The term “information” is then used throughout section 4062.3 in the context of records provided to either a QME or an AME. (See, e.g, Lab Code, §§ 4062(b), (c), (d).) Because “information” should be given the same meaning throughout section 4062.3 (see Castro, supra, 47 Cal. App.4th at 932), we presume that “information” should have the same meaning in each use throughout section 4062.3, regardless of whether it references records provided to a QME or an AME. MAXHAM, Bradley 8 1 Wrk. Comp. PD LEXIS 221, at p. 21.) We have accordingly held that sub rosa video provided to a QME 2 constituted “information” because, “Information, such as a film or video is separate from a 3 communication and its enclosure with a communication will not transform it into a communication.” 4 (See Wan v. Community Health Network (San Francisco Gen. Hosp.) (2015) 2015 Cal. Wrk. Comp. P.D. 5 LEXIS 243, p. 6.) We have similarly held that a vocational report provided to an AME at a deposition 6 could not be a “communication” because it “also contained ‘information’ as defined in section 7 4062.3(a)(2).” (See Trapero v. Northern American Pneumatics (2012) 2012 Cal. Wrk. Comp. P.D. 8 LEXIS 541, p. 9.) In these cases, the salient question was whether the “communication” at issue 9 contained, referenced, or enclosed “information,” as that term is defined in section 4062.3(a). We thus 10 conclude that a “communication” under section 4062.3 can become “information” if that correspondence 11 or letter contains, references, or encloses (1) records prepared or maintained by the employee’s treating 12 physician or physicians, or (2) medical and nonmedical records relevant to determination of the medical 13 issue. 14 In the event a piece of correspondence is deemed to be “information” under the above analysis, 15 the next step is to determine whether providing that “information” to the AME was prohibited. Section 16 4062.3(c) establishes that, when an AME is selected, “the parties shall agree on what information is to be 17 provided to the agreed medical evaluator.” 18 correspondence contains, references, or encloses (1) records prepared or maintained by the employee’s 19 treating physician or physicians, or (2) medical and nonmedical records relevant to determination of the 20 medical issue that the parties previously agreed to provide to the AME, serving that correspondence on 21 the AME without giving the opposing party an opportunity to object would not violate section 4062.3(c). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// MAXHAM, Bradley (Lab. Code, § 4062.3(c).) 9 Accordingly, if the 1 Only when the correspondence contains, references, or encloses “information” which the parties have not 2 agreed to provide to the AME does it violate section 4062.3(c). 9 3 In applying the above analysis to the advocacy letters submitted by applicant in this case, we are 4 unable to presently determine whether applicant’s counsel sent impermissible “information” to the 5 AMEs. As the WCJ notes in the Report, applicant’s October 14, 2015 letter to Dr. Abeliuk states that 6 “Judge Phenix’s Findings and Award dated November 25, 2012 is enclosed, as well as his most recent 7 decisions awarding temporary total disability benefits and the summary of evidence and Minutes of 8 Hearing relating to those two decisions.” 10 (March 25, 2016 Petition for Costs, Ex. A, p. 10.) These 9 records appear to reference both (1) records prepared or maintained by the employee’s treating physician 10 or physicians, and (2) medical and nonmedical records relevant to determination of the medical issue[,]” 11 and thus constitute “information” under section 4062.3. (See, e.g., Minutes of Hearing, October 19, 12 2012, p. 4:1-11 [referencing various depositions taken in the case, each of which constitute “nonmedical 13 records relevant to determination of the medical issue”].) The October 14, 2015 letter to Dr. Abeliuk 14 purportedly enclosed and references these case documents, which themselves appear to reference 15 “information” in this case. We are unable to determine, however, whether the parties previously agreed 16 that this “information” could be provided to Dr. Abeliuk and, for that reason, must return this case to the 17 trial level so that the WCJ can determine in the first instance whether prohibited “information” was 18 provided to the AME. 19 /// 20 21 22 23 24 25 26 27 9 By way of example, consider a situation where a defendant’s counsel drafts an advocacy letter to an AME citing portions of an applicant’s deposition testimony. Because that correspondence references “medical and nonmedical records relevant to determination of the medical issue” (i.e., applicant’s deposition), it constitutes “information” under section 4062.3(c). If the parties previously agreed that applicant’s deposition transcript would be provided to the AME, however, serving the advocacy letter on the AME would not violate section 4062.3(c) because the parties previously agreed that the “information” at issue (i.e., applicant’s deposition testimony) would be provided to the AME. Said differently, litigants are entitled to reference (1) records prepared or maintained by the employee’s treating physician or physicians, and (2) medical and nonmedical records relevant to determination of the medical issue in advocacy letters if the parties have previously agreed to provide that referenced “information” to the AME. 10 We note that the “enclosure” list at the end of the October 14, 2015 letter to Dr. Abeliuk does not indicate that the referenced documents were actually enclosed with the letter. (March 25, 2016 Petition for Costs, Ex. A, p. 12.) We thus cannot determine on the present record whether they were actually provided to Dr. Abeliuk. MAXHAM, Bradley 10 1 2 Similarly, as the WCJ notes in the Report, applicant’s November 18, 2015 letter to Dr. Lapins states that, Mr. Maxham was evaluated by AME Dr. Thomas Pattison for issues other than AOE/COE. In the doctor’s report dated November 11, 2013, he found that in addition to the Guillain-Barré syndrome, its associated diagnosis and sequelae include the following: hand contractures requiring multiple hand surgeries, neuropathic pain syndrome, possible cognitive impairment/fatigue, tracheostomyhealed, and bladder issues and major depression, recurrent, with anger control issues. 3 4 5 6 7 8 (March 25, 2016 Petition for Costs, Ex. D, p. 4.) Dr. Pattison’s report certainly constitutes a medical 9 record relevant to determination of the medical issue in this case, and is thus “information.” The 10 November 18, 2015 letter to Dr. Lapins references this “information,” and thus could itself be considered 11 “information” as well. Although the WCJ acknowledges that Dr. Pattison’s report is “part of the current 12 record” (Report, p. 3), we are unable to determine whether the parties previously agreed that this 13 “information” (i.e., Dr. Pattison’s November 11, 2013 report) would be provided to Dr. Lapins. We will 14 thus return this case to the WCJ to make that determination. 11 15 We disagree with defendants, however, that applicant’s letters to the AMEs constitute 16 “information” simply because the “body of the letter itself included the applicant’s legal position.” 17 (Petition, p. 5:2-3 [emphasis in original].) As noted above, defendants objected to large portions of 18 applicant’s November 18, 2015 letter to Dr. Lapins on the basis that it made arguments regarding the 19 impact of various legal decisions on the determinations to be made in this case. Ordinarily, however, 20 advocacy letters discussing legal positions or decisions would not constitute “information” as defined by 21 section 4062.3(a). Our review of defendant’s proposed revisions to the November 18, 2015 letter to Dr. 22 Lapins does not reveal that the objected to portions contain or reference any (1) records prepared or 23 maintained by the employee’s treating physician or physicians, or (2) medical and nonmedical records 24 25 11 26 27 In his Report, the WCJ also raises as a potential issue applicant’s purported inclusion of a blank “Residual Functional Capacity Assessment” form with his letter. (Report, p. 3.) We are unable to determine on the present record whether inclusion of this form would transform the correspondence at issue into “information.” We accordingly leave that determination to be made by the WCJ in the first instance, utilizing the framework adopted in this opinion. MAXHAM, Bradley 11 1 relevant to determination of the medical issue. (See March 25, 2016 Petition for Costs, Ex. E, p. 2-3; 2 supra, p. 3:6-4:10.) As such, those portions of applicant’s advocacy letter are not objectionable. 3 We recognize that previous panel decisions on this issue may have created confusion regarding 4 the precise delineation between “communication” and “information” and whether engaging in advocacy 5 crosses that line. 12 To the extent that those decisions do not comport with the above analysis of the 6 dividing line between “information” and “communication,” we disagree with them. Despite our previous 7 indications to the contrary, engaging in legitimate “advocacy” does not transform correspondence with a 8 medical examiner from “communication” into “information.” 13 9 Correspondence engaging in “advocacy” or asserting a “legal or factual position” can, however, 10 cross the line into “information” if it has the effect of disclosing impermissible “information” to the 11 AME without explicitly containing, referencing, or enclosing it. Misrepresentation of case law or legal 12 holdings, engaging in sophistry regarding factual or legal issues, or misrepresentation of actual 13 “information” in a case are three ways in which a party might attempt to convey purported “information” 14 to a medical examiner to which the opposing party has not agreed. The WCJ retains wide discretion in 15 assessing the contents of a parties’ advocacy letters to ensure parties do not serve correspondence which 16 could confuse or misdirect the attention of a medical examiner, even if that “communication” does not 17 expressly contain, reference, or enclose “information.” 18 /// 19 /// 20 12 21 22 23 24 25 26 27 See, e.g., Nehdar, supra, 2013 Cal. Wrk. Comp. P.D. LEXIS 221, at p. 22 [“A letter can constitute information if the body of the letter itself includes a party’s legal or factual position, or communicates information as to the factual, relevant or operative circumstances of a case.”]; Ferniza v. Rent A Center (2010) 2010 Cal. Wrk. Comp. P.D. LEXIS 624, at p. 14 [“Some communications - those which convey only neutral information, e.g., an unembellished list of issues to be determined, a list of records sent to the evaluator, basic information such as the injured worker’s date of birth or date of injury—are ‘communications’ only, and not ‘information,’ i.e. ‘medical and nonmedical records’ within the meaning of section 4062.3(a). In this case, however, no one disputes that defendant’s position statement crossed the line into advocacy. Because of its nature as an advocacy letter, this communication constitutes ‘information’ and falls within the prohibition of section 4062.3(b)[.]”]. 13 After all, parties typically select a medical examiner “because of his or her expertise and neutrality.” (See Brower v. David Jones Constr. (2014) 79 Cal. Comp. Cases 550, 556, citing Power v. Workers’ Comp. Appeals Bd. (1986) 179 Cal. App. 3d 775, 782 [51 Cal.Comp.Cases 114].) Given a medical examiner’s presumed expertise and neutrality, he or she is wellequipped to evaluate the parties’ reasonable advocacy when formulating an opinion regarding each case. MAXHAM, Bradley 12 1 Accordingly, we will rescind the Order and return this matter to the trial level so that the WCJ can 2 reassess applicant’s letters and their enclosures to the AMEs under this framework. 3 determines that applicant improperly provided “information” to the AMEs, he has wide discretion in 4 fashioning an appropriate remedy for the violation of section 4062.3(c). Because this case does not 5 involve an improper ex parte communication with an AME, removal of that AME may not be warranted. 6 In the Report, the WCJ notes that, 7 If the WCJ In light of the long and difficult medical-legal history of the present claim, it would appear significantly prejudicial to both sides to remove Dr. Abeliuk from the case. Accordingly, the undersigned feels that the parties should meet and confer and attempt to jointly agree on a purpose letter that can be sent to Dr. Abeliuk. Upon agreement on a letter, the parties can request that the AME consider only that letter and disregard any and all prior advocacy letters previously sent by either party. 8 9 10 11 12 (Report, p. 3.) Although we do not endorse any particular remedy in the event the WCJ determines 13 applicant improperly provided “information” to the AMEs, given the circumstances of this case we do 14 not believe that the WCJ’s proposal above would be inappropriate. 15 III. 16 17 CONCLUSION Accordingly, based upon our review of the record, defendants’ Petition for Removal, applicant’s Answer, the contents of the WCJ’s Report, and the relevant statutes and case law, we hold that: 18 1. “Information,” as that term is used in section 4062.3, constitutes (1) records prepared or 19 maintained by the employee’s treating physician or physicians, and/or (2) medical and 20 nonmedical records relevant to determination of the medical issues. 21 2. A “communication,” as that term is used in section 4062.3, can constitute “information” if 22 it contains, references, or encloses (1) records prepared or maintained by the employee’s 23 treating physician or physicians, and/or (2) medical and nonmedical records relevant to 24 determination of the medical issues. 25 We thus grant defendant’s Petition for Removal and, as our decision after removal, will rescind 26 the Order and return this matter to the trial level for further proceedings consistent with this opinion. 27 /// MAXHAM, Bradley 13 1 For the foregoing reasons, 2 IT IS HEREBY ORDERED as the decision of the Workers’ Compensation Appeals Board (En 3 Banc) that defendant’s Petition for Removal of the Order issued by the workers’ compensation 4 administrative law judge on June 2, 2016 is GRANTED. 5 IT IS FURTHER ORDERED as the Decision After Removal of the Workers’ Compensation 6 Appeals Board (En Banc) that the Order issued by the workers’ compensation administrative law judge 7 on June 2, 2016 is RESCINDED and that this matter is hereby RETURNED to the trial level for further 8 proceedings consistent with the opinion herein. 9 WORKERS’ COMPENSATION APPEALS BOARD (EN BANC) 10 11 /s/ Frank M. Brass______________________ FRANK M. BRASS, Commissioner 12 13 /s/ Deidra E. Lowe______________________ DEIDRA E. LOWE, Commissioner 14 15 _/s/ Marguerite Sweeney__________________ MARGUERITE SWEENEY, Commissioner 16 17 18 _/s/ Katherine A. Zalewski_________________ KATHERINE A. ZALEWSKI, Commissioner 19 20 _/s/ Jose H. Razo______________________ JOSÉ H. RAZO, Commissioner 21 22 23 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 24 25 1/23/2017 26 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED ON THE FOLLOWING PAGE AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. 27 SS/aw/abs MAXHAM, Bradley 14 1 SERVICE LIST 2 3 4 5 6 ADELBERG ASSOCIATES MEDICAL GROUP BRADLEY MAXHAM CURTIS WINTER FRAULOB BROWN GOWEN & SNAPP MASTAGNI HOLSTEDT STATE COMPENSATION INSURANCE FUND STATE OF CALIFORNIA, DEPARTMENT OF CORRECTIONS 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MAXHAM, Bradley 15