Chapter 1. Industrial Medical Council
Article 3. Assignment of Qualified Medical Evaluators, Evaluation Procedure

§35. Exchange of Information.

(a) Where an employee is unrepresented, the claims administrator or, if none, the employer shall, and the employee may, provide to the QME:

(1) All records prepared or maintained by the employee's treating physician or physicians;

(2) Other medical records in their possession, including any previous treatment records, and/or non-medical records or information which are relevant to the evaluation of the employee's injury;

(3) A letter outlining the issues which the QME 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;

(b) In no fewer than 20 days before the information is to be provided to the QME, the party providing such information shall serve on the opposing party the following:

(1) A copy of all medical records and medical reports to be sent.

(2) A copy of all non-medical documents or other non-medical information, including films or videotapes, to be sent. The claims administrator or 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.”

(3) Copies of all records being sent to the QME shall be sent to all parties except as otherwise provided in section (c). Failure to do so shall constitute ex parte communication by the party transmitting the information under section (f).

(c) 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 (b)(1) provided, however, that the unrepresented employee is served all non-medical information in subsection (b)(2) 20 days prior to the information being served on the QME so the employee has an opportunity to object to any non-medical information.

(d) In the event that a party fails to provide to the QME any relevant medical record which the QME deems necessary to perform a comprehensive medical-legal evaluation, the QME may contact the treating physicians or other health care provider, to obtain such record(s). If the party fails to provide relevant medical records under section (a) within 10 days after the date of the evaluation, and the QME is unable to obtain the records, the QME shall complete and serve the report to comply with the statutory time frames under Section 38. The QME shall note in the report that the records were not received within the required time period. Upon request by the party, or the Appeals Board, the QME shall complete a supplemental evaluation when the relevant medical records are received. For a supplemental report the QME need not conduct an additional physical examination of the employee if the QME believes a review of the additional records is sufficient.

(e) The QME and the employee's treating physician(s) may consult as necessary to produce a complete and accurate report. The QME shall note within the report new or additional information received from the treating physician.

(f) If an employer or claims administrator communicates with a QME in violation of Labor Code section 4062.2, the Medical Director shall provide the unrepresented employee with a new panel in which to select a new QME or the employee may elect to proceed with the original QME. If an employee communicates with a QME either before or after the evaluation, in violation of Labor Code section 4062.2, the claims administrator or employer may request the Medical Director to issue a new panel to the unrepresented employee. The Appeals Board shall retain jurisdiction to determine whether ex parte contact has occurred in all cases.

NOTE: Authority cited: Sections 139 and 139.2, Labor Code. Reference: Sections 139.2, 4060, 4061, 4062, 4062.2, Labor Code.

HISTORY

1. New section filed 8-1-94; operative 8-31-94 (Register 94, No. 31).

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).