GEORGE THE BARTENDER’S DISPATCHES FROM OFFLINE HAPPY HOUR – APPLYING LABOR CODE §4628 TO MED-LEGAL REPORTING OR, IT’S A SMALL WORLD AFTER ALL!
FROM THE TIKI LOUNGE OF THE DISNEYLAND HOTEL:
I had just finished my first day as an exhibitor at the 2022 Public Agency Risk Management Association’s Annual Conference at the Disneyland Hotel. I was dressed in my vintage black hat and cocktail bar apron as our firm’s booth theme was George the Bartender. I had learned to make Mai Tais and martinis from George himself in preparation for the event!
I made my way to the Tiki Lounge for some much-needed respite and some continued networking. “Here’s to a great first day at the PARMA Conference!” I declared to the crowd at the Tiki Lounge as I hoisted my Mai Tai in the air. A nearby group of risk managers exclaimed, “Cheers!”
Not everyone at the lounge appeared to be in great spirits however, as I spied a rather gloomy-looking risk manager who was sitting by the fire. I made my way over to see what the matter was. “What’s got you down? I know it might appear as if I’m a Disney cast member employed at the Tiki Lounge, but I am actually a defense attorney.” We laughed.
She said her name was Pam, and as it turned out she had been battling an applicant’s attorney who had demanded a 100% rating based upon a Panel Qualified Medical Examiner (PQME) report. She explained that the PQME report had multiple errors, but she just could not find a way to get rid of the report and obtain a proper evaluation of the applicant.
Apparently, the PQME was not properly applying the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition), aka the Guides, and she was concerned about the cost of another PQME report at a rate of $3.00/page of reviewed records. She had paid a large sum for the first PQME report and anticipated a Workers’ Compensation Judge (WCJ) awarding the applicant a 100% rating per this report.
I smiled and said, “Well, lucky for you I recently made a presentation on how to reduce exposure on medical-legal reports with a renowned AMA expert, Phil Walker, and one of our associate attorneys at a conference for the Association of Workers’ Compensation Professionals (AWCP).”
At this my claims friend began to look more upbeat at the prospect that there may be a solution to her problem. I explained that during that presentation we discussed three aspects of medical reporting, starting with how to attack the AMA guides, how they are applied to injuries and then specific procedural aspects of the California Labor Code that require doctors to ensure they are producing valid reports.
I let her know of a Workers’ Compensation Appeals Board (WCAB) panel decision from July 2021, Sonnier v. Los Angeles Unified School District (ADJ10793298), a case I worked on where I successfully contended that the PQME violated the anti-ghost-writing statute under Labor Code §4628.1 In Sonnier the WCJ had initially issued a Findings and Order denying our request to replace the PQME on the grounds that they violated the anti-ghost-writing statute.
The WCAB agreed with my argument and overturned the WCJ’s decision, finding that the PQME reporting should be struck due to the violation of Labor Code §4628, their reports were inadmissible, and a replacement panel was required. The WCAB contended that the requirements contained within it are to ensure that the doctor who signs a report was the person who examined the injured worker and prepared the report. Labor Code §4628 states in relevant parts as follows:
(a) Except as provided in subdivision (c), no person, other than the physician who signs the medical-legal report, except a nurse performing those functions routinely performed by a nurse, such as taking blood pressure, shall examine the injured employee or participate in the nonclerical preparation of the report, including all of the following:
(1) Taking a complete history.
(2) Reviewing and summarizing prior medical records.
(3) Composing and drafting the conclusions of the report.
(e) Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.
I explained to Pam those factual problems can be found in these types of cases as the PQME signs under penalty of perjury that they, the doctor, conducted the medical record review. You can frequently spot the language in a report, which typically reads as follows:
Review of history with the patient, review of medical records, physical examination, reading of x-rays, medical dictation/review of final report by myself.
Upon cross-examination you may find that the PQME may in fact admit that they did not write the review of records as stipulated. In my cross-examination of the PQME in Sonnier I found that the PQME did not write the summary of prior medical reports even though they had stipulated that they had written the reports. This is considered a non-clerical task so it must be completed by the examining doctor. The PQME in Sonnier testified that in one of the reports an engineer wrote the summary of the records, which invalidated most of a 30-plus-page report as it was written by someone other than the PQME, which is ghost-writing. As the WCAB pointed out in Sonnier:
Section 4628 is a strict liability statute. If the physician who prepared the report did not comply with the statute’s requirements, there is no balancing of whether the failure to comply with its provisions affected the report’s reliability. The reports are inadmissible as evidence per section 4628(e).2
Why is this situation significant, loyal Lobby Bar patron? Often defendants are told that their case must wait until the adjudication of the full case in chief to litigate discovery issues like this.
In Sonnier we were able to move forward with a trial on discovery on the sole issue of replacement due to violation of Labor Code §4628. There was no need to go to a full trial on all issues at the WCAB in order to get a determination that the doctor violated the anti-ghost-writing statute. This type of defense practice places the PQME report squarely at issue without having to address the applicant testimony or witnesses.
I told Pam that the sole issue in this instance is: Did the doctor comply with Labor Code §4628? This creates a decision point in the discovery of the case without incurring further litigation or trial expense because the PQME report can be deemed inadmissible before the full case in chief proceeds to trial.
Also, I pointed out to Pam that as cost can be a driving factor in whether you want to proceed with a replacement PQME after the discovery of errors in a prior PQME report, Labor Code §4628(e) addresses this as follows:
(e) Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report. (emphasis added)
A procedural practice point to consider is that after you depose the PQME a party may file a Petition to Strike reporting of the PQME and request an Order for a Replacement Panel.
This discovery process sets up the Labor Code §4628 issue for the court as follows: Whether to strike the reporting of the PQME and order a replacement?
What distinguishes Sonnier from other cases is that the WCAB found a threshold issue which was then a final decision subject to a determination by the WCAB. Given that this decision included a finding regarding injury AOE/COE as to two parts of body, a threshold issue fundamental to the claim for benefits was addressed by the WCJ allowing for the decision to be subject to reconsideration rather than removal.
This gets us back to the strict liability nature of Labor Code §4628, which causes problems for applicant attorneys and the PQME, as clearly Labor Code §4628(a)(2) requires the physician to review and summarize the prior medical records since this is considered non-clerical preparation of the report per the statute. In Sonnier, the PQME testified upon cross-examination that pages of his reports with summary of applicant’s medical records were prepared by other individuals. For some reports the PQME was unaware who prepared the summary of records or the qualifications of those individuals.
Pam interrupted me to ask why delay a case with additional reporting from a PQME that has admittedly failed to comply with the anti-ghost-writing statute?
I told her that in Sonnier the WCAB rescinded the Finding and Order and issued a new decision finding that the doctor’s reporting must be stricken and a replacement QME panel issued. This was not only upheld by the WCAB in the summer of 2021, but again in the fall of 2021 as the applicant’s attorney filed for Petition of Removal of the Panel. In October 2021, the WCAB denied this petition, relying again on Scheffield as they had in July 2021, stating that the anti-ghost-writing statute was:
Enacted in 1989 as part of the overall reform package to ensure the reliability of the medical evaluation, which it hoped to achieve by controlling the quality of the medical-legal reporting . . . Preservation of the integrity of the medical-legal process identified as critical and the Legislature was intended to exactly prevent the type of ghost-writing that occurred in this case by the medical legal evaluator.
Pam appeared to be elated. I lifted my glass to celebrate Sonnier and encouraged her to consider reviewing the PQME reports and perhaps cross-examine the doctor. This shows what a little bit of networking and some Disney magic can get you!
All characters at the Tiki Lounge are fictional and the storyline is simply a product of my spirited imagination.
We are here to ensure the proper administration of benefits and if the medical-legal examination report does not reflect proper reporting then it must be challenged to ensure that the proper admissible records are considered at the WCAB. The ultimate goal is to ensure medical reports are substantial medical evidence written by doctors that can assist the WCJ and WCAB in making an effective determination regarding compensability.
Medical professionals should be alerted that their reports and review of medical records are being given a rigorous review in accordance with Labor Code §4628 and there is no allowance within the legislative intent for medical providers to review records but have another entity write the medical summary. Their contracting out this essential work to an unknown third party is a violation of the strict liability provision in the Labor Code, resulting in the exclusion of the report.
The fact that a doctor reviewed the records but didn’t write the summary is an example of a violation of the anti-ghost-writing statute. Do you want “possibly an engineer” writing a summary of your medical reports? With the increased costs of the PQME schedule for pages of records reviewed, it is only fitting that the medical-legal evaluator write the summary. These reports are not just cursory reports, they are considered by judges and other medical professionals, and aid in making permanent disability, apportionment, and temporary disability evaluations.
While Sonnier lacks the designation “significant panel decision,” the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive, as laid out in its en banc decision Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 242, fn. 7.
Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We are making our way out into the wide world, little by little, one conference at a time, and drinking doubles prepared by professionals again. Cheers friends and keep washing your hands.
1 A copy of Sonnier can be obtained via email request.
2 Scheffield Medical Group v. Workers’ Comp. Appeals Bd. (1999) 70 Cal.App.4th 868, 881.