Preparation for trial and other pre-trial matters

• Author: David L. Pollak/Roger A. Tolman, Jr./Monika R. Reyes
• Pages: 1051-1118

PREPARATION

FOR TRIAL

19-1

CHAPTER 19

PREPARATION FOR TRIAL AND

OTHER PRETRIAL MATTERS

I. INTRODUCTION

§19:01 Medical Evidence: The AME/QME “Dance”

§19:02 Contested Liability Cases

§19:03 A Medical Report Is a Privileged Pre-Litigation Communication

II. PRETRIAL DETERMINATION OF MEDICAL ISSUES

A. General Points

§19:10 Review of Employee Claim Form Procedures: Time Constraints

§19:11 Trigger for AME/QME Process

§19:12 AME/QME Process No Longer Available for Medical Treatment Disputes

§19:13 Independent Medical Review

B. Formal Medical Evaluation Procedures in Contested Cases: Initial Evaluation

§19:20 Labor Code §4060: General Considerations

§19:21 Labor Code §4060(c): Represented Employees

§19:22 Labor Code §4060(d): Unrepresented Employees

C. Formal Medical Evaluation of Permanent Disability if Injury Is Admitted

§19:30 Notice Requirements

§19:31 Procedure for Represented Employees

§19:32 Procedure for Unrepresented Employees

D. Formal Medical Evaluations of Other Issues if Injury Is Admitted

§19:40 Objections to Issues Not Covered by LC §§4060 or 4061, and Not Subject to Utilization Review

§19:41 Procedure for Represented Employees

§19:42 Procedure for Unrepresented Employees

§19:43 Objections to Treatment and Effect of Utilization Review

E. Medical Evaluation Procedure

§19:50 Represented Employees: Injuries Before January 1, 2005

§19:51 Represented Employees: Injuries on or After January 1, 2005

§19:52 Unrepresented Employees; Appointment of QME Panel

§19:53 QME Notif‌ication and Cancellation Requirements

§19:54 Evaluation Time Frames; Requests for Extension; Supplemental Reports

§19:55 Replacement Panels

§19:56 Obtaining QME Panel in Different Specialty

§19:57 Permissibility of Additional Evaluations

§19:58 QME Panel Disputes in Represented Cases

F. Role of Treating Physician

§19:60 Increased Importance of Role

§19:61 The Rise and Fall of the Treating Physician Presumption

§19:62 Identity of Treating Physician

PREPARATION

FOR TRIAL

California Workers’ Compensation 19-2

G. The Formal Medical Evaluation Process

§19:80 Information Provided to AME or QME

§19:81 Ex Parte Communication With AME or QME

§19:82 Rating Information to Be Submitted to Unrepresented Employee and QME

H. The Formal Medical Evaluation

§19:90 Minimum Face-to-Face Time

I. Formal Medical Evaluation Report

§19:100 Written Report and Summary of Medical Findings by Evaluator

§19:101 Information Required to Be Identif‌ied by Evaluator

§19:102 Apportionment Question to WCJ Re Unrepresented Worker

§19:103 Notice to Employee With Rating

J. Right to Request Reconsideration of Summary Rating

§19:120 Reconsideration Proceedings

K. Further Proceedings

§19:130 Employer Obligation to Pay Benef‌its or File Application

§19:131 Notice to Accompany Permanent Disability Rating

§19:132 Subsequent Evaluations for Recurrent Issues

§19:133 AME/QME Process Mandatory For Disputes on Permanent Disability

III. QUALIFIED MEDICAL EVALUATORS

§19:140 Authority for Appointment

§19:141 Qualif‌ications for Appointment

§19:142 Reappointment of QMEs

§19:143 Disclosure and Ethical Requirements

§19:144 Suspension/Termination of QME

§19:145 QME Right to Hearing; Probation in Lieu of Termination

IV. THE MEDICAL EXAMINATION PROCESS IN BOARD PROCEEDINGS

A. General Points

§19:150 Bifurcation of Threshold Liability Issues

§19:151 Medical Evidence by Reports Favored

§19:152 Cross-Examination of Medical Witnesses

§19:153 Service of Medical Appointment Notices

§19:154 Requirements of Notice of Examination

B. Agreed Medical Evaluators and Regular Physicians

§19:160 Agreed Medical Evaluators: AME’s

§19:161 Regular Physicians

§19:162 [Reserved]

§19:163 Binding Effect of Agreed Medical Evaluations and Regular Physicians

C. Applicant’s Right to Medical and Legal Representation at Defense Medical Examination

§19:180 Medical Representation

§19:181 Right to Legal Representation

D. Use of Interpreter During Medical Examination

§19:190 “Qualif‌ied Interpreters”

§19:191 Interpreter Fees

V. REPORTS OF MEDICAL EVALUATIONS

A. Ghost Writing Prohibition

§19:200 Prohibition

§19:201 Exception

B. Contents of Medical Reports

§19:210 Statutory Requirements for Comprehensive Medical Evaluations

§19:211 Sanctions for Non-Compliance

§19:212 Reports of Attending or Examining Physicians

§19:213 Requirements for Medical Reports

C. Standardized Evaluation Procedures

§19:230 Evaluation Protocols

PREPARATION

FOR TRIAL

19-3 Preparation for Trial and Other Pre-Trial Matters

D. Face-to-Face Evaluation

§19:240 Telemedicine

§19:241 Recording Medical Evaluations

VI. OBLIGATION TO FILE AND/OR SERVE MEDICAL REPORTS

A. Continuing Duty to File/Serve Medical Reports

§19:300 Reports Received After the Hearing Request and Before Hearing

§19:301 By Court Order for Non-Physician Lien Claimant

B. Failure to File/Serve

§19:310 Willfully Suppressed Medical Reports

VII. MEDICAL RECORDS

A. General Points

§19:320 Relevance

§19:321 Subpoena Duces Tecum

§19:322 Certif‌ied Copies in Lieu of Appearance

§19:323 Subpoena Duces Tecum Notice Requirement: “All Parties”

§19:324 Pre-Trial Production of Medical Records upon Patient Authorization

§19:325 Personnel and Social Security Records

§19:326 Psychiatric Records

§19:327 Sealed Board Records

§19:328 [Reserved]

§19:329 X-Rays

§19:330 Photocopy Services and Costs

B. Privilege Problems

§19:340 Physician-Patient Privilege and Privilege Against Self-Incrimination Do Not Apply

§19:341 “Peer-Review” Material in Hospital Records; In Camera Inspection

§19:342 Peace Off‌icer Personnel Records Concerning Citizen Complaints

§19:343 Compare Employer’s First Report of Work Injury

§19:344 Discovery of Claimant’s Sexual Conduct

§19:345 Non-Party Personnel or Medical Records

§19:346 Non Reachable HIV Test Records

§19:347 Employee- Applicants With Actual or Suspected HIV/AIDS Conditions

§19:348 Disclosure of Medical Information to Employer Prohibited

§19:349 Attorney-Client Privilege

VIII. EMPLOYER’S RIGHT TO HAVE CLAIMANT EXAMINED

§19:360 Defense Exams at Reasonable Intervals

§19:361 Time and Place of Examination

§19:362 Sanctions on Refusal: Suspension or Barring of Benef‌its

§19:363 Petitions Under LC §§4051-4054

FORMS (ON DIGITAL ACCESS ONLY)

19.1 Replacement Panel Request (ADR 31.5)

19.2 Additional Panel Request (ADR 31.7)

19.3 Request For QME Panel under LC §4062.2 — Represented — for injuries occurring prior to

January 1, 2015 (QME Form 106)

19.4 Request For QME Panel under LC §4062.1 — Unrepresented (QME Form 105)