January 5, 2017
VOCATIONAL APPORTIONMENT V. MEDICAL APPORTIONMENT
By: Olivia Gordon, Esq.
Defendants must recognize the difference between an applicant alleging permanent total disability (PTD) based on medical impairment pursuant to the AMA Guides and PTD based on “in accordance with the fact” under Labor Code §4662(b).
In Target Corp. v. WCAB (Estrada), the applicant suffered a cumulative trauma injury to his low back, neck, left knee, left shoulder, right shoulder, lower extremities, thoracic spine, left arm, left forearm, left wrist, stomach, psyche, sleep, diabetes and hypertension, while employed as a team leader/laborer. Following Trial, the Workers’ Compensation Judge (WCJ) issued a decision finding applicant 100% PTD, without apportionment, “in accordance with the facts” under Labor Code §4662(b) should be classified as ‘information’ and not merely a ‘communication’ because [they are] ‘non-medical records relevant to the determination of the medical issue.” The WCAB explained this case does not involve “ex parte” communication, but instead involves Labor Code §4062.3(c)’s requirement the parties agree on what “information” is to be provided to an AME. In this instance, “information” meant documents to be sent to the doctor after being listed on a schedule of records for a medical-legal doctor to review.
Defendant argued the “body of the letter itself included applicant’s legal position” and therefore, it was impermissible. The WCAB disagreed with defendant and recognized their “previous panel decisions on this issue may have created confusion regarding the precise delineation between “information” and “communication” and whether engaging advocacy crosses that line… Despite [our] previous indications the contrary, engaging in legitimate “advocacy” does not transform correspondence with the medical examiner from “communication” into information”.
The most important aspect of this en banc decision is the Commissioners’ opinion about what would make such advocacy impermissible:
“Correspondence engaging in “advocacy” or asserting a “legal or factual position” can, however, cross the line into “information” if it has the effect of disclosing impermissible “information” to the AME without explicitly containing, referencing, or enclosing it. Misrepresentation of case law or legal holdings, engaging in sophistry regarding factual or legal issues, or misrepresentation of actual “information” in a case are three ways in which a party might attempt to convey purported “information” to a medical examiner to which the opposing party has not agreed.“ What does this mean for the defense community going forward? Practically speaking, this decision does not change anything we do on a daily basis. Defendants of course should not provide information to a doctor which misrepresents facts and/or case law.
A WCJ has “wide discretion” in assessing the contents of “advocacy letters” to make sure they do not confuse or misdirect an AME.
Therefore, there are a couple of important practice points: (1) ensure you timely object to applicant attorney’s “advocacy” letter if it arguably constitutes a misrepresentation of facts or law, or otherwise engages in prohibited “sophistry,” which may “confuse or misdirect” the physician and (2) ensure your own “advocacy” letters fairly represent the facts/law and all “information” is properly supported.