When an applicant's attorney objects to a proposal to send a qualified medical evaluator a deposition transcript, filing a petition to compel the deposition transcript to the QME can be a useful tool to getting more objective testimony in front of the evaluator’s eyes.

Rebecca M. Martin

During the last few years, some applicants' attorneys have made it a regular practice to object to the listing of applicant’s deposition transcript in proposed advocacy letters to QMEs. Defendants can combat this by filing a petition to compel. Here are some basic strategy tips for persuading the court to compel deposition transcripts to QMEs.

Deposition transcripts are material evidence
for QMEs

In California workers’ compensation cases, ensuring that a QME has access to all relevant evidence is vital for a fair and accurate medical-legal opinion. A frequent point of contention arises when deposition transcripts are proposed as nonmedical evidence for review by the QME. Understanding the proper procedures and advocacy strategies is essential in overcoming objections issued by applicants’ attorneys.

The importance of advocacy letters under Labor Code §4062.3

Labor Code §4062.3 outlines the requirement for serving proposed advocacy letters — including medical and nonmedical evidence — to opposing counsel at least 20 days before submitting them to the QME. If the applicant’s attorney objects within 10 days to any nonmedical records or information, such as deposition transcripts, those materials cannot be sent without an order from a workers’ compensation judge. Compliance with California Code of Regulations Title 8, Sections 35(d) and 35(f) is crucial in these instances.

When applicant’s attorney objects to deposition transcripts

Applicants' attorneys may object to including deposition transcripts as nonmedical evidence. To overcome this objection, a petition to compel deposition transcripts as material evidence for submission to PQME should be filed. This petition ensures that the QME has all pertinent facts, minimizing the risk of incomplete or unsupported conclusions.

Key components of the petition

1. Materiality of deposition transcripts: The petition must articulate why the deposition transcripts are essential. It should detail how the transcripts highlight key facts, such as:

• AOE/COE (arising out of employment/course of employment) disputes.
• Apportionment of disability to prior conditions.
• The applicant’s credibility and admissions.

Without the full context provided by these transcripts, the QME’s opinion may be uninformed or skewed.

2. Regulatory framework and objections: The petition should reference 8 CCR §35(d), which grants opposing counsel the right to object to nonmedical evidence within 10 days. Absent an agreement, 8 CCR §35(f) necessitates a WCJ’s order to submit such evidence. Clearly citing these regulations establishes the foundation for judicial intervention.

3. Jurisdiction to resolve disputes: Under 8 CCR §35(k), the Workers' Compensation Appeals Board holds jurisdiction to resolve disputes over nonmedical evidence objections. This provision emphasizes the necessity of judicial review to prevent withholding critical evidence.

4. Request for order and potential for expedited hearing: Given the potential for an incomplete QME report, the petition should request an order allowing submission of the deposition transcripts and an expedited hearing if opposing counsel maintains objections.

This approach ensures timely resolution and prevents reports that fail to meet substantial evidence standards.

5. An alternative argument: At the end of one’s petition, one could also make the “alternative” argument that a deposition transcript does contain medical evidence, especially if applicant testified about medical treatment and medical conditions. As such, one could argue that the applicant’s attorney had no right to make the objection in the first place and that the objection was made in bad faith.

Conclusion

Filing a well-supported petition to compel deposition transcripts enhances the credibility and thoroughness of medical-legal evaluations by giving QMEs a more accurate history of the claim.

Rebecca M. Martin is an associate attorney at Bradford and Barthel’s Los Angeles location. This entry from Bradford & Barthel's blog appears with permission.