Communication versus Information – Maxham vs. Department of Corrections

 

In an overwhelming majority of court cases, the parties settle before ever having to see the inside of a court room. The field of workers’ compensation is no exception. Attorneys for both sides are typically experienced and are skilled in obtaining reasonable settlement agreements. There is a lot of paperwork and material exchanged by the attorneys in an effort to get to a settlement or prepare for trial. In some cases, the parties may agree to use an “Agreed Medical Evaluator” in order to help get to a proper settlement. The AME will examine and evaluate the injured worker and determine the level of disability or impairment. In preparation for this evaluation, the attorneys may also send certain letters to the AME. California Labor Code 4062.3 contains rules about what can and cannot be sent to the AME before the evaluation, including medical records from current and previous treating physicians. The attorney may also provide a letter “outlining the medical determination of the primary treating physician,” and a copy of that letter must also be served on the opposing party at least twenty days before the evaluation. Subsection (d) states that if the opposing party objects within ten days to any non-medical records or “information” that is proposed to be sent to the AME, the information shall not be sent unless a judge approves it. An attorney may communicate with the AME without the approval of the other attorney for purposes such as furnishing records and reports or other “nonsubstantive matters.” The difference between “communication” and “information” is therefore crucial, as communication without the “go ahead” from the opposing side is permissible, whereas passing information is not.

In Maxham v. California Department of Corrections and Rehabilitation, the WCAB was faced with the task of clarifying the difference between communication and information. In that case, the applicant’s attorney provided the employer’s attorney with a copy of the proposed “communication” to the AME, which included factual assertions, citation to case law, and summaries of legal principles. The defendant’s attorney timely objected to the letter and asked for portions to be redacted. The attorney for the employee sent the unredacted letter. The WCAB determined that “information” in these cases constitutes records prepared or maintained by a physician and/or medical and nonmedical relevant records. A communication can become information if it contains, references, or encloses medical or non-medical records that are otherwise “information.”

If you have questions about workers’ compensation, call us today at (714) 516-8188. We will discuss your business and what you can do to make sure you are facing workers’ compensation issues head on.

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