It’s OK to advocate. Lawyers can be lawyers.
Within limits, of course.
That’s my take-away from the recently unveiled WCAB “en banc” decision in Bradley Maxham v. California Department of Corrections and SCIF (see link to the case below).
State Fund apparently got worked up about letters that Mr. Maxham’s counsel sent to three AMEs in the case.
The big question the case poses is the meaning of California Labor Code 4062.3, which as drafted includes the terms “information” and “communication”.
4062.3 is sort of an “anti-sandbag” statute, setting forth rules as to when and what can be provided to the QME or AME.
In writing an advocacy letter that provided a position statement to the AME on issues such as apportionment and the level of proof necessary to sustain Almaraz-Guzman, did the applicant attorney go further than “communication”? Did they provide “information” that was not by agreement?
The WCAB holds that:
“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 non-medical records relevant to determination of the medical issues.
A “communication,” as that term is used in section 4062.3, can constitute “information” if 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.”
The WCAB noted that there is “tension between these provisions”.
Advocacy letters by lawyers to the QME/AME are clearly “communication” but do not necessarily constitute “information”. However, the WCAB notes that a communication “can become “information” if that correspondence or letter contains, references, or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, or (2) medical and nonmusical records relevant to the determination of the medical issue.”
In this particular case, the facts as to what was actually sent along with the advocacy letter was not clear (although the applicant attorney provided to the AME a WCAB trial judge ruling and various court documents, all of which apparently referenced medical documents). Therefore, the WCAB remanded the matter to the trial judge.
On remand one issue for the trial judge will be to determine whether the parties had in fact agreed that such information could be provided to the AME in the first place.
What is laudable about the en banc decision, however, is that it clears up lingering uncertainty about advocacy letters which state a party’s legal position.
The WCAB notes that prior decisions in Ferniza v. Rent a Center (2010) 2010 Cal. Wrk. Comp. P.D. LEXIS 624 and Nehdar v. Washington Mutual (2013) 2013 Ca. Wrk. Comp.P.D. LEXIS 221 “may have created confusion regarding the precise delineation between “communication” and “information” and whether engaging in advocacy crosses that line”.
In Ferniza, for example the WCAB found that “defendant violated section 4062.3(b) by providing the PQME its position statement over applicant’s objection, and that applicant is entitled to attorney’s fees and costs under section 4062.3(g) based on this violation.”
So Maxham now overrides Ferniza.
This means legitimate advocacy is ok. That’s good, lest the representatives of the worker and employer find themselves in a free speech strait jacket where they can’t lay out the issues for the examiner.
But the WCAB noted that there are lines that are verboten, as they should be. Misrepresenting facts or legal holdings or other types of legal sophistry would fall in that category.
As they note: “The WCJ retains wide discretion in assessing the contents of a parties’ advocacy letters to ensure parties do not serve correspondence which could confuse or misdirect the attention of a medical examiner, even if that “communication” does not expressly contain, reference or enclose “information”.
Here is the link to the decision: