Objections to providing a panel-qualified medical evaluator with a copy of applicant’s deposition are one of the more unusual disputes in the Labor Code 4062.2 process. Fortunately, there are tools for defense attorneys to get the matter before a judge.

Daniel R. Stevens

The issue of providing cover letters and documents to PQMEs likely comes up on almost a daily basis for attorneys in the California workers’ compensation system. Usually, this practice means a routine exercise of drafting a letter to the PQME that explains why the evaluation was requested in the first place, issues that the parties want specifically addressed and then reviewing the file to determine what documents should be provided.

Obviously, medical reports and subpoenaed medical records are the most common documents provided. But what is starting to become an issue, surprisingly, is providing a PQME with a copy of the applicant’s deposition transcript.

I say surprisingly because why would a party not want what is usually the only discovery that is under penalty of perjury provided to a PQME? One would think that applicant’s testimony regarding the claim, injuries and treatment would be the best source of information for the PQME to gain a better understanding of the medical issues that the evaluator's involvement is meant to address.

Sure, at the evaluation itself, the PQME can ask questions of the applicant regarding whatever he believes is important, but the applicant’s responses to a PQME’s questions are not under penalty of perjury. Furthermore, if a PQME already has a copy of the applicant’s deposition prior to the evaluation, the PQME should already have a much better idea of what is going on and can then fine-tune inquiries to the applicant during the evaluation.

The current issue and/or problem, depending on how you view it, comes from LC 4062.3(a)(2) and CCR 35(a)(4), both of which indicate that “nonmedical records” that are “relevant to the determination of the medical issue” may be provided to a PQME. Not surprisingly, depositions are considered to be nonmedical records.

Thus, pursuant to LC 4062.3(b), following the receipt of the other side’s proposed cover letter/index of documents to be provided to the PQME, a party has a right to object to any nonmedical records within 10 days. Since a deposition is a nonmedical record, a party is certainly within its right to object. But once a party objects and refuses to waive the objection, the deposition cannot be sent to the PQME unless so ordered by a WCJ.

This then raises two predominant questions:

• Why would a party object to providing a PQME with an applicant’s deposition?
• What can or should be done upon receipt of such an objection?

Why object?

Thus far, I have heard only one plausible and/or reasonable explanation for objecting to providing the deposition to a PQME, which is that there may be objections in the transcript that have yet to be ruled upon by a WCJ before it goes to a PQME.

What can be done?

Because of that, this issue is commonly addressed by the parties going to a hearing where counsel and the hearing WCJ literally go through the transcript, discuss the objections, and then they are ruled on. While this procedure takes care of the issue of unresolved objections, it is also a very laborious and time-consuming process.

Furthermore, depending on which Workers' Compensation Appeals Board office your matter is venued at, it could be months before such a hearing can be conducted. This, in turn, results in your PQME evaluation being delayed for at least that long as well.

Petition for emergency stay

There is, however, an expedited way of getting this issue to a hearing other than filing a declaration of readiness to proceed: the not-often utilized petition for emergency stay pursuant to CCR 10530, which can be presented as a walk-through. However, this is not the same as the walk-through procedure counsel typically employs for getting settlements approved. Quite the contrary, actually.

But before you even get to the WCAB, the party that wants to file the petition needs to provide notice to the other side no later than 10 a.m. the court day before you intend to walk through the petition. The notice must state the specific nature of the relief being requested and the date, time and place where the petition will be walked through.

Further, a copy of the petition must be attached to the notice. And since this is being done so quickly, the notice cannot just be served via regular mail. Rather, notice must be provided as expeditiously as possible (i.e., phone, fax, email, overnight mail, etc.) If notice cannot be provided for some reason, then the party must set forth what good faith efforts were made to try to provide notice per CCR 10530(c).

Then, on the day that the party wants to do the walk-through of the petition, it must present the petition to the presiding WCJ of the district office having venue or to the WCJ of a permanently staffed satellite WCAB office. Pursuant to CCR 10530(a), each district office must have a designee of the presiding WCJ available to assign the petition to during the normal business hours of 8-11 a.m. and 1-4 p.m. on court days.

Also, keep in mind that the petition itself needs to include a declaration under penalty of perjury that indicates proper notice was provided to the other party and how this was accomplished, what relief is being sought and whether any opposition to the petition is expected. As you would expect, the party filing the petition has the burden of showing why a stay should issue.

Assuming all of the above is done correctly, the presiding WCJ has three options for addressing the petition per CCR 10530(d). They are:

• Deny the petition.
• Grant a temporary stay and set a hearing to address the petition.
• Set the petition for a hearing without either denying the petition or granting the temporary stay.

Unlike civil litigation where the parties typically employ form interrogatories, special interrogatories, requests for production and requests for admission — which all need to be under penalty of perjury — the applicant’s deposition is usually the sole source of information that a PQME will have to review that was provided under penalty of perjury.

Thus, if an objection to providing a deposition to a PQME is received, it likely was done for the purpose of causing the party that wanted to provide it to simply decide not to provide it in order to avoid needing the issue to be addressed by a WCJ, which can sometimes take months. Thus, a petition for an emergency stay of action pursuant to CCR 10530 can be an effective tool for eliminating that concern.

In fact, oftentimes just the threat of having to deal with such a petition is enough to have the objection removed.

Petition to compel

Alternatively, an attorney could file a petition to compel a deposition to a PQME. While this is a more unusual method to compelling records to a PQME, if the defendant feels that applicant’s attorney's objections are in bad faith, a petition to compel the deposition to the PQME could be quickly granted if the judge agrees.

If the judge does quickly issue an order compelling the deposition to the PQME, this puts the applicant’s attorney in a bind; she can either go through the time and effort of filing an objection or a petition for removal and explain her objections under penalty of perjury. (Please recall that such pleadings require a declaration under penalty of perjury.)

However, if the reasoning doesn’t pass the smell test, the objections could be construed as “frivolous or solely intended to cause unnecessary delay” under Labor Code 5813. If that statute sounds familiar, it’s because that is the “sanctions and costs” statute that most practitioners dread.

Frankly, Labor Code 5813 could apply to any bad faith objections solely intended to delay proceedings with the PQME. So if the objection appears to be in bad faith and the objecting party continues to double down on bad faith actions, perhaps a “meet and confer” followed by a petition for sanctions and costs per LC 5813 may be warranted.

Conclusion

Remember that the deposition of an applicant is one of the few times in the workers’ compensation case where the applicant describes the claim under penalty of perjury.

If a party objects to the provision of the deposition transcript to a PQME, the proponent of the deposition must bring the dispute before the WCAB. While a DOR for a hearing is one way of doing so, a petition for emergency stay and a petition to compel both present other potential options in the proverbial workers’ compensation toolbox for practitioners.

Daniel R. Stevens is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Ventura location. This entry from Bradford & Barthel's blog appears with permission.