Maxham: What Can Your Lawyer Send to the Workers’ Compensation Medical Evaluator?

When your benefits depend on a medical opinion, you want the doctor to understand what happened to you. That means reviewing the right records and answering the right questions. But a dispute can begin before the examination—over a letter explaining your injuries, describing an earlier award or asking the doctor to consider a particular legal rule.

In Maxham v. California Department of Corrections and Rehabilitation, 82 Cal.Comp.Cases 136 (2017), the Workers’ Compensation Appeals Board explained an important distinction: Copying the other lawyer on a letter and obtaining agreement on the information sent to an agreed medical evaluator are separate requirements.

Why the letters became disputed

An agreed medical evaluator, or AME, is a doctor selected by agreement between the injured worker’s attorney and the employer’s attorney to evaluate disputed medical issues.

Bradley Maxham’s attorney prepared letters for three AMEs. The letters discussed legal questions affecting his benefits, including how to evaluate permanent disability and distinguish the effects of different injuries. They also referred to case records and another doctor’s medical findings.

The employer objected. The workers’ compensation judge initially treated the letters as permissible communications because the employer’s attorney had received copies.

The Board found that this answered only part of the question. Everyone receiving a copy established that the letters were not secret communications. The judge still needed to examine the information they carried and whether the parties had agreed to provide it to the doctors.

A letter can carry medical information without attaching a report

Under the Board’s analysis, information includes treating physicians’ records and other medical or nonmedical records relevant to the disputed medical issues. A letter can carry that information by describing or referring to a record, even when the record itself is not attached.

One letter discussed findings in an earlier medical report. Another referred to prior awards and hearing records. The Board needed factual answers about whether the parties had agreed to send that material to the particular AME.

The distinction matters. A report being somewhere in the workers’ compensation case file does not, by itself, answer whether the parties agreed to provide it to a particular evaluator. The Board’s discussion of the letters shows why counsel must examine the actual correspondence and agreements.

Lawyers can still explain their legal positions

The Board also rejected the employer’s argument that a letter becomes prohibited information simply because it advocates a legal position. Legitimate advocacy ordinarily remains a communication.

For example, the Board described a hypothetical letter quoting deposition testimony. That letter contains information because it refers to a case record. But if the parties had already agreed to send the deposition to the AME, referring to it would satisfy the agreement requirement discussed in the decision.

Accuracy remains essential. The Board warned that misleading descriptions of facts or legal decisions can improperly convey information and confuse the evaluator. Calling something an argument does not excuse a distorted account of the record.

Agreement and advance notice are separate checks

Maxham explains the agreement requirement in Labor Code section 4062.3. Counsel must also check the service requirements that apply to the particular submission. Section 4062.3(f) requires written AME communications to be served on the opposing party when sent to the AME. The current medical-evaluator regulation, section 35(c), separately requires medical and nonmedical reports and information to be served on the other party at least 20 days before they are provided to the evaluator. Section 35(a)(3) requires the letter outlining the medical determination or compensability issues for the evaluation to be served at least 20 days before the evaluation.

Counsel should review the proposed package as a whole: The review should cover the records, the letter, the parties’ agreement and each applicable service date. That means checking agreement on the information as well as the timing requirements for the particular letter or records.

Why the Board sent the case back

On January 23, 2017, the Board, sitting en banc, set aside the judge’s order and returned the dispute for further proceedings. The existing record did not establish the necessary agreements or even whether some documents described as enclosed had actually been sent.

The judge would need to apply the Board’s framework to the actual letters, agreements and delivery evidence, then determine an appropriate remedy for any violation. One specific question concerned a blank form asking the doctor to assess the worker’s functional capacity. The Board directed the judge to decide whether including that form made the letter information under the new framework.

Because opposing counsel had received copies, the dispute concerned agreement on the information rather than prohibited private contact. The Board left the judge discretion to choose a remedy suited to that violation. Given the claim’s long medical-legal history, the judge proposed that the lawyers agree on a replacement letter for Dr. Abeliuk and ask him to consider that letter while disregarding the earlier advocacy letters. The Board discussed that possible correction, while leaving the choice of remedy for the judge after reviewing what had actually been sent.

What this means for an injured worker

If you are concerned about what an evaluator received, ask your attorney to review the complete letter, its actual attachments, the parties’ agreements and any objections. Counsel should also check which materials the doctor identified as received, reviewed or relied upon.

Maxham makes that review concrete: What reached the doctor? What had the parties agreed to provide? How was the information described? Those answers can help your lawyer identify a problem and seek a correction suited to your case.

Our medical-evaluator records and communications guide explains the broader preparation steps. For representation with a disputed medical report, see our California workers’ compensation practice.