Providing Cover Letter and Documents to a QME with an Unrepresented Injured Worker (Laws to Remember)
When dealing with an unrepresented injured worker, the process for getting to a Qualified Medical Evaluator (QME) is laid out in Labor Code §§ 4060-4062.1. And remember, there is no Agreed Medical Evaluator (AME) with an unrepresented worker. However, once the QME has been chosen, there are laws AND regulations that must be adhered to when providing the QME a cover letter and/or documents. These rules are provided in Labor Code §4062.3 and Title 8, California Code of Regulations §35. This article discusses some rules in general from these Codes, but the Codes themselves should be reviewed for the exact reading of each law and regulation.
Either party has the right to provide the doctor medical and non-medical records so long as they are relevant to determination of the medical issue. However, any information to be sent to the QME shall (must) be served on the opposing party 20 days before the information is provided to the evaluator. The opposing party then has 10 days to object to any of the non-medical information. If there is a timely objection, those records shall not be provided to the evaluator unless so ordered by a Workers’ Compensation Administrative Law Judge (WCALJ).
If there are any non-medical documents that have received objection, a decision must then be made to either proceed with the QME examination without the doctor’s review of the objectionable documents, or, cancel the examination and move forward with either additional discovery to establish the accuracy or authenticity of the non-medical record(s) or go straight to filing a Declaration of Readiness to Proceed for review by a WCALJ to determine admissibility.
A cover letter to the QME should always be sent which outlines the issues to be addressed, as well as any and all relevant information that is needed to help the QME make his opinions on the issues to be addressed. This could include historical facts, medical history, or any other information you believe is relevant. Of course, what one party believes is relevant the other party may not.
Because of possible dispute to statements within the proposed cover letter, it must also be provided to the unrepresented worker 20 days in advance of sending to the QME. A separate cover letter should be provided to the worker enclosing a copy of the proposed QME cover letter along with a log of all medical and non-medical records intended to be sent to the QME. This separate cover letter shall clearly and conspicuously include the following language, “Please look carefully at the enclosed information. It may be used by the doctor who is evaluating your medical condition as it relates to your workers’ compensation claim. If you do not want the doctor to see this information, you must let me know within 10 days.”
If any of the above is not followed by the letter of the law, the unrepresented worker may be allowed a new panel of QME’s and the panel process would start again. Providing information or documents to the QME outside of the confines of these laws could be considered ex parte communication which in some circumstances constitutes being in contempt of the Court and additional costs and penalties may be levied.
Again, please review the Code and Regulation for precise reading of the law. And as always, if you have additional questions and/or are thoroughly confused after reading the law, please consult your attorney.