Communicating With The Qualified Medical Evaluator
When a dispute arises regarding a medical determination made by an employee’s treating physician, the issue is often resolved by use
of a Qualified Medical Evaluator (QME). There are rules, however, as to what information may be provided to the QME and under what circumstances.
The Law
California Labor Code section 4062.3 contains rules regarding the provision of information to a QME. If these rules are violated, the party may be charged with contempt and be held liable for the costs incurred by the other party as a result of the violation.
All communications with the QME before a medical evaluation must be in writing and served on the opposing party 20 days before the evaluation. Subsequent communications with the QME must be in writing and served on the opposing party when sent to the QME. If a party violates this rule, the other party may terminate the evaluation and request a new QME. This rule, however, does not apply to oral or written communications by the employee in the course of the evaluation or at the request of the evaluator in connection with the evaluation.
The parties also may provide the QME records prepared or maintained by the employee’s treating physician(s) and other records, medical and nonmedical, relevant to determination of the medical issue(s) for which the QME’s opinions are sought. Such information must be served on the opposing party 20 days before it is provided to the QME. The opposing party then has 10 days to object to providing the nonmedical records to the QME. If an objection is made, the records must not be sent to the QME. At this point, the parties should work to resolve the issue and, if necessary, seek the assistance of the Workers’ Compensation Appeals Board (WCAB).
There is an exception to these rules that allows the employee to provide oral or written communications by the employee in the course of the evaluation or at the request of the evaluator in connection with the evaluation. One would expect this to allow the employee to answer questions and complete written questionnaires at the time of the appointment, but as will be seen below, has recently been interpreted more broadly than this limited purpose.
What Not To Do
In the recent case of Garcia v. Sweetwater Union High School District (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 750, the employee underwent evaluation by QME Dr. O’Meara. The employee’s attorney sent the defendant a letter regarding alleged inappropriate conduct by Dr. O’Meara during the evaluation, including a purported verbal attack on the employee by the doctor. The letter also indicated the employee’s attorney would be reporting the doctor to the Medical Board. The defendant subsequently sent a copy of this letter to Dr. O’Meara with a request that the doctor respond to the allegations.
The WCAB determined that the defendant had violated Labor Code section 4062.3. The WCAB specifically noted that the forwarded letter (regarding allegations about the doctor’s behavior) bore no legitimate relevance on the medical issues Dr. O’Meara was to address. The employee was allowed to request a new panel of QMEs from which a new QME could be selected. Also the QME report previously prepared by Dr. O’Meara was stricken from the record and deemed inadmissible as evidence.
What Employees Can Do That Defendants Cannot
In the recent case of Geiger v. Geiger (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 751, the employee attended an evaluation by Dr. Kasman. During the course of the evaluation, the employee disclosed the existence of notes and video describing and depicting the employee’s seizures, which were part of the claimed injury. The employee purportedly had not planned to show the notes and video to the doctor, but the doctor asked to see them.
According to the WCAB, the doctor’s request to see the notes and video met the criteria for the previously-mentioned exception to the rule requiring prior notice to the other party. In my opinion, this is not the type of situation contemplated by these rules, but nonetheless, it was allowed. The WCAB did note, however, that they did not find bad faith at work here, and the effects of the disclosed notes and video were minimal, resulting in no prejudice to the defendant.
Conclusion
As usual, the burden on the defendant is greater than the burden on the employee. In order to avoid having a favorable QME opinion thrown out and causing unnecessary delays in having to repeat the QME selection process and obtain new evaluations and new reports, it is best to keep in mind these rules and stay within the parameters of what can and cannot be communicated to a QME and under what circumstances.