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By Chinwe Ohanele


When is correspondence sent to an AME impermissible information as opposed to acceptable communication?

This question was recently answered in the En Banc decision of Maxham v. California Department of Corrections and Rehabilitation; State Compensation Fund. This case sets forth a three step analysis concerning what may be sent to a medical-legal evaluator.

In the case Maxham case, the two parties had agreed to use three AMEs: Doctors Abeliuk, Johnson, and Lapins.

On October 28, 2015 applicant’s attorney sent drafts of letters to Dr. Abeliuk and Dr. Johnson to defendant. Defendant objected the same day. Applicant’s attorney sent the letters to the AMEs over Defendant’s objection. On November 18, 2015 applicant’s counsel sent defendant a draft of the letter for Dr. Lapins. Defendant objected to the letter to Dr. Lapins on November 20, 2015. On November 23, 2015, Applicant’s counsel stated they would submit the letter to Dr. Lapins over Defendant’s objection.

On December 17, 2015, Defendant filed a DOR and asked the court “Whether applicant counsel’s letters to Drs. Johnson, Abeliuk, and Lapins constitute ‘other information’ as contemplated by LC Section 4062.3 and 8 CCR Section 35.”

The trial judge ruled in favor of applicant on June 2, 2016. Defendant filed a Petition for Removal and the WCJ issued his report on July 1, 2016 recommending that defendant’s petition be granted.

Ultimately, the En Banc decision found that the matter must be removed to the trial court to so that the court can determine whether the information contained in applicant’s letters was previously agreed upon, or impermissible information in violation of LC Section 4062.3 and 8 CCR Section 35. The analysis we draw from the court results in the following three step process:

      1.   Is the correspondence being sent to an AME or PQME?
      2.   Can the correspondence be classified as information or communication?
      3.   If the correspondence can be classified as information, then was the information agreed upon?

The question of whether the content of the letter is information or correspondence only applies if the letter is being sent to an Agreed Medical Examiner. LC Section 4062.3(c) states that 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.

In contrast, LC Section 4062.3(a) states 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 the determination of the medical issue.

Therefore, the question of what information is permissible, depends on who will be receiving the correspondence. Information is potentially impermissible if it is sent to an AME.

Once it has been determined the correspondence will be received by an AME, then the correspondence must be classified either as information or correspondence.

Information is defined by LC Section 4062.3(a) as (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.

Communication is defined by LC Section 4062.3(f) as Oral or written communications with physician staff or, as applicable, with the agreed medical evaluator, relative to non-substantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report. Further the court states that these communications will not constitute ex parte communications either.

The distinction between correspondence and information is made interesting in that correspondence can become information if the letter references any of the following:

      a.   Records prepared or maintained by the employee’s treating physician or physician

      b.   Medical and nonmedical records relevant to determination of the medical issue

      c.   Example: film or video is enclosed, a vocational report

      d.   Misrepresentation of case law or legal holdings

      e.   Use of invalid arguments with the intent to deceive in regards to factual or legal issues

      f.   Misrepresentation of actual ‘information’ in case

Based on the case we offer the following practice tips:

When preparing correspondence intended for an examiner, check whether the examiner is a QME, or an AME. If the examiner is a QME, you may proceed with your correspondence unconcerned whether your advocacy letter contains or constitutes information.

However, if the correspondence is intended for an AME you may send the correspondence if it does not contain information. If the correspondence includes information make sure it contains only information both parties have agreed the AME may review.

If, on the other, there was neither a present or prior agreement as to the AME’s review of the information contained in the correspondence, opposing party must review the correspondence and if objected to, correspondence cannot be sent to the examiner. The matter may be brought before a WCJ if parties cannot agree on a workable revision.

Where the letter was sent over your objection, or where a timely objection was not made but the matter was brought before the WCAB, the court in Maxham agrees that removing the AME would be prejudicial to both parties. Therefore, it is recommended that the parties “jointly agree on a purpose letter that can be sent to the [examiner] Upon agreement on a letter, the parties can request that the AME consider only that letter and disregard any and all prior advocacy letter previously sent by either party (Maxham).”

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