Workers’ Compensation

Ca. Workers' Comp. Quarterly 2020, Vol. 33, No. 1

WCAB Further Defines Medical-Legal Communication and Record

Barry W. Ponticello, Esq. Renee C. St.Clair, Esq. San Diego, California

In late October 2018 the California Workers’ Compensation Appeals Board (WCAB) issued an en banc opinion in the case of Sandab Suon v. California Dairies (Suon) (2018) 83 Cal.Comp.Cases 1803, addressing medical-legal communication and record review. Since en banc decisions, meant to opine on issues of importance for the workers’ compensation community, are not commonplace and are binding precedent on all WCABs and workers’ compensation judges, they are worthy of close consideration.

In Suon the WCAB addressed in detail procedural requirements and remedies related to the transmission of information to medical-legal evaluators (qualified medical examiners [QMEs] and agreed medical examiners [AMEs]) that either violates the Labor Code or ignores an opposing party’s timely objection. In so doing, the Suon court expanded on the previous en banc decision in Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136, which distinguished information from communications that were or were not subject to objection.1

Briefly, let’s consider the underlying facts of Suon. Three consolidated cases were in litigation when a panel qualified medical evaluation (PQME) in orthopedics went forward on one of the cases. The applicant’s attorney deposed panel QME Dr. Weber. During the deposition the doctor indicated he wanted to review the report of the QME in psychiatry, Dr. Paul, and issue a supplemental report. Thereafter, defendant sent a unilateral correspondence to Dr. Weber transmitting the psych QME report and asking that he comment on it. No proof of service was attached to the letter, although it was alleged that it was concurrently served on applicant’s attorney. Dr. Weber then issued a supplemental report, noting his opinions remained "unchanged" after his review of Dr. Paul’s QME report.

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