Supplemental Panel QME record review (California)

[laesquire]

Panel QME examined Applicant no report yet.

Film on applicant now. Shows applicant to be very active.

How much time notice do I have to give the other side before sending the film to the Panel QME?

Do I just send a letter to the P QME requesting he review the film and CC applicant attorney at the same time?

Or do I have to send AA the letter I plan to send to the P QMe then wait 20 days then send it?

Or something else?

[inquiring mind]

Subrosa films seems to fall under LC 4062.3(b).

[laesquire]

Thank you.

The exam already occured so slight twist. Looks like 4062.3(e) send letter and film with CC to AA at same time.

[stevepsca]

There is only on reference to sub rosas in the CCR's...

(5) Non-medical records, including films and videotapes, which are relevant to determination of medical issue(s) in dispute, after compliance with subdivision 35(c) of Title 8 of the California Code of Regulations.

Those same CCRs define the LC, however don't address subsequent communication with the evaluator...only that films are subject to section (c)

§35. Exchange of Information and Ex Parte Communications.(c) At least twenty (20) days before the information is to be provided to the evaluator, the party providing such medical and non-medical reports and information shall serve it on the opposing party. Mental health records that are subject to the protections of Health and Safety Code section 123115(b) shall not be served directly on the injured employee, but may be provided to a designated health care provider as provided in section 123115(b)(2), and the injured employee shall be notified in writing of this option for each such record to be provided to the evaluator. In both unrepresented and represented cases the claims administrator shall attach a log to the front of the records and information being sent to the opposing party that identifies each record or other information to be sent to the evaluator and lists each item in the order it is attached to or appears on the log. In a represented case, the injured worker's attorney shall do the same for any records or other information to be sent to the evaluator directly from the attorney's office, if any. The claims administrator, or if none the employer, shall include a cover letter or other document when providing such information to the employee which 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." http://www.dir.ca.gov/t8/35.html

I meant to post this the other day... I just got tired of reading it. The part I find confusing is that films are singled out, and subject to section (c) specifically. (?)
On the other hand, are you positive the sub rosa is of the IW in question ?

4062.3 (e) though appears clear...

(e) All communications with an agreed medical evaluator or a
qualified medical evaluator selected from a panel before a medical
evaluation shall be in writing and shall be served on the opposing
party 20 days in advance of the evaluation. Any subsequent
communication with the medical evaluator shall be in writing and
shall be served on the opposing party when sent to the medical
evaluator.http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=04001-05000&file=4060-4068

[steelmanlaw]

as usual, the Labor Code is a model of . . . something.

the 20-day rule of sub§ (b) as to panel QME's "appears" to only apply to pre eval information to the QME, with related 10-day rule thereafter for objection to non-medical information. however, there is no like language addressing your QME situation requiring the parties to agree on information sent to the QME. (i.e., contra sub§ (c) w/r/t AME's.)

thus, to harmonize both (b) and (e) with respect to post-eval communcations only, merely copy opposing counsel with the film and transmittal simultaneous with transmittal to the doc. you are probably going through what most thinking counsel do, because for some reason sending film to a QME when copying opposing counsel "feels" a bit aggressive and not necessarily consistent with the QME process. however, we are practicing black letter law and if there is a problem, the legislature should have addressed it.

accordingly, i join your conclusion that the film goes to QME-doc and opposing counsel simultaneously, and by the same method. (i.e., whether by mail, courier or otherwise.)

[postscript2]

Has the PQME ( which is really the AME, since the case is litigated) prepared the report yet and if so has it been served? The PQME report could be thrown out if the other party isn't timely noticed per the CCR's. I've been through this before.

I once had a pro per I/W whom I suspected was extremely active beyond their restrictions. I had to fly the I/W in from out of state and had them filmed at an airport where the investigator made the "pick-up" point. It depicted pictures of the I/W lifting extremely heavy luggage and lifting two hefty kids, stollers and carseats into an SUV.

I go the film before the report, but waited. I then sent a copy of the film/disc to the I/W for review and stated in a very simple letter that unless they objected within 20 days, I would be sending this to the PQME. It was the approprate thing to do. I also explained that if they did object, that I would file for a hearing to seek an Order allowing the films into evidence. I/W did not object, PQME reviewed and the I/W received a ZERO rating.

I would not take a chance on this... Better be cautious and wait a few weeks. What's the difference? At least you will have followed protocol. For all you know, the I/W may be on some very heavy meds and have a reason for their activites. Depends upon what they are doing.

But at any rate, good luck. I'd like to hear the outcome of this one!!!

LCS