Cal. Code Regs. Tit. 8, § 35 - Exchange of Information and Ex Parte Communications
(a) The claims
administrator, or if none the employer, shall provide, and the injured worker
may provide, the following information to the evaluator, whether an AME or QME:
(1) All records prepared or maintained by the
employee's treating physician or physicians;
(2) Other medical records, including any
previous treatment records or information, which are relevant to determination
of the medical issue(s) in dispute;
(3) A letter outlining the medical
determination of the primary treating physician or the compensability issue(s)
that the evaluator is requested to address in the evaluation, which shall be
served on the opposing party no less than 20 days in advance of the
evaluation;
(4) Where the
evaluation is for injuries that occurred before January 1, 2013, concerning a
dispute over a utilization review decision if the decision is communicated to
the requesting physician on or before June 30, 2013, whenever the treating
physician's recommended medical treatment is disputed, a copy of the treating
physician's report recommending the medical treatment with all supporting
documents, a copy of claims administrator's, or if none the employer's,
decision to approve, delay, deny or modify the disputed treatment with the
documents supporting the decision, and all other relevant communications about
the disputed treatment exchanged during the utilization review process required
by Labor Code section
4610;
(5) Non-medical records, including films and
videotapes, which are relevant to determination of medical issue(s) in dispute,
after compliance with subdivision of Title 835(c) of Title 8 of the California
Code of Regulations.
(b)
(1) Except as expressly provided in Labor
Code section
4062.3(f)
concerning communications with an agreed medical evaluator, all communications
by the parties with the evaluator shall be in writing and sent simultaneously
to the opposing party when sent to the medical evaluator, except as otherwise
provided in subdivisions (c), (k) and (l) of this section.
Labor Code section
4062.3(f)
allows oral or written communications with an AME physician or the physician's
staff relative to nonsubstantive matters such as the scheduling of
appointments, missed appointments, the furnishing of records and reports, and
the availability of the report, unless the appeals board has made a specific
finding of an impermissible ex parte communication.
(2) Represented parties who have selected an
Agreed Medical Evaluator shall, as part of their agreement, agree on what
information is to be provided to the AME.
(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."
(d) If the opposing party
objects within 10 days to any non-medical records or information proposed to be
sent to an evaluator, those records and that information shall not be provided
to the evaluator unless so ordered by a Workers' Compensation Administrative
Law Judge.
(e) In no event shall
any party forward to the evaluator:
(1) any
medical/legal report which has been rejected by a party as untimely pursuant to
Labor Code section
4062.5;
(2) any evaluation or consulting report
written by any physician other than a treating physician, the primary treating
physician or secondary physician, or an evaluator through the medical-legal
process in Labor Code sections
4060 through
4062, that
addresses permanent impairment, permanent disability or apportionment under
California workers' compensation laws, unless that physician's report has first
been ruled admissible by a Workers' Compensation Administrative Law Judge;
or
(3) any medical report or record
or other information or thing which has been stricken, or found inadequate or
inadmissible by a Workers' Compensation Administrative Law Judge, or which
otherwise has been deemed inadmissible to the evaluator as a matter of
law.
(f) Either party
may use discovery to establish the accuracy or authenticity of non-medical
records or information prior to the evaluation.
(g) Copies of all records being sent to the
evaluator shall be sent to all parties except as otherwise provided in section
(d) and (e). Failure to do so shall constitute ex parte communication within
the meaning of subdivision (k) below by the party transmitting the information
to the evaluator.
(h) In the event
that the unrepresented employee schedules an appointment within 20 days of
receipt of the panel, the employer or if none, the claims administrator shall
not be required to comply with the 20 day time frame for sending medical
information in subsection (c) provided, however, that the unrepresented
employee is served all non-medical information in subdivision (c) 20 days prior
to the information being served on the QME so the employee has an opportunity
to object to any non-medical information.
(i) If any party fails to provide relevant
medical records within 10 days after the date of the evaluation, and the
evaluator is unable to obtain the records, the evaluator shall complete and
serve the report to comply with the statutory time frames under section
of Title
838 of Title 8 of the California Code of
Regulations. The evaluator shall note in the report that the records were not
received within the required time period. Upon request by a party, or the
Appeals Board, the evaluator shall complete a supplemental evaluation when the
relevant medical records are received. For a supplemental report the evaluator
need not conduct an additional physical examination of the employee if the
evaluator believes a review of the additional records is sufficient.
(j) The evaluator and the employee's treating
physician(s) may consult as necessary to produce a complete and accurate
report. The evaluator shall note within the report new or additional
information received from the treating physician.
(k) The Appeals Board shall retain
jurisdiction in all cases to determine disputes arising from objections and
whether ex parte contact in violation of Labor Code section
4062.3 or this
section of Title 8 of the California Code of Regulations has occurred. If any
party communicates with an evaluator in violation of Labor Code section
4062.3, the
Medical Director shall provide the aggrieved party with a new panel in which to
select a new QME or the aggrieved party may elect to proceed with the original
evaluator. Oral or written communications by the employee, or if the employee
is deceased by the employee's dependent, made in the course of the examination
or made at the request of the evaluator in connection with the examination
shall not provide grounds for a new evaluator unless the Appeals Board has made
a specific finding of an impermissible ex parte communication.
(l) In claims involving a date of injury
prior to 1/1/2005 where the injured worker is represented by an attorney and
the parties have decided to each select a separate Qualified Medical Evaluator,
the provisions of this section shall not apply to the communications between a
party and the QME selected by that party.
Notes
Note: Authority cited: Sections 133, 139.2 and 5307.3, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.1, 4062.2, 4062.3, 4064 and 4067, Labor Code.
Note: Authority cited: Sections 133, 139.2 and 5307.3, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.1, 4062.2, 4062.3, 4064 and 4067, Labor Code.
2. New subsection (c) and subsection relettering, amendment of newly designated subsections (d) and (e) and new subsection (f) filed 8-23-96; operative 9-22-96 (Register 96, No. 34).
3. New subsection (b)(3) and amendment of subsection (e) filed 4-14-2000; operative 5-14-2000 (Register 2000, No. 15).
4. Amendment of section heading, section and Note filed 1-13-2009; operative 2-17-2009 (Register 2009, No. 3).
5. Amendment of subsections (a)(4) and (b)(1) filed 12-31-2012 as an emergency; operative 1-1-2013 pursuant to Government Code section 11346.1(d) (Register 2013, No. 1). A Certificate of Compliance must be transmitted to OAL by 7-1-2013 or emergency language will be repealed by operation of law on the following day.
6. Amendment of subsections (a)(4) and (b)(1) refiled 7-1-2013 as an emergency; operative 7-1-2013 (Register 2013, No. 27). A Certificate of Compliance must be transmitted to OAL by 9-30-2013 or emergency language will be repealed by operation of law on the following day.
7. Certificate of Compliance as to 7-1-2013 order, including amendment of subsections (a)(3)-(4), transmitted to OAL 8-2-2013 and filed 9-16-2013; amendments operative 9-16-2013 pursuant to Government Code section 11343.4(b)(3)(Register 2013, No. 38).
8. Amendment of subsections (a), (b)(2) and (i) filed 2-26-2024; operative
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