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CLIENT PRESENTATIONS

GMK is bringing our Annual GMK Seminar presentations and training to our clients with face-to-face training in your office.

We have over 25 client presentations confirmed for 2017. These training sessions are customized to client preferences. Our presentations generally last one hour, but depending on the requested topics to be covered some will take up to three hours. Continuing education credits are available for the training, just like it has been in the past for the annual GMK Seminars. We have numerous suggested topics that we have prepared for training which are attached here for your review. GMK can tailor a presentation on the topic of your choice. These training sessions provide one-on-one training with GMK attorneys.

If you haven't already signed up for GMK’s face-to-face training, please do so now by sending an email to Joy Tolladay jtolladay@gmklaw.com to schedule your personalized training with GMK.

AMENDED - WHAT IS A LEGAL “ADVOCACY LETTER”?

BRADLEY MAXHAM V CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

**Please note our January 27, 2017 GMK Alert had an error and the correct case name should be Bradley Maxham vs. California Department of Corrections and Rehabilitation**

On January 23, 2016 the WCAB issued an en-banc decision addressing the issue of what is “information” and what is a “communication” for purposes of advocacy letters to be submitted to an AME or a QME. En banc decisions are binding precedent on all WCAB panels and judges.

In Maxham, the applicant’s attorney submitted advocacy letters to three AME’s. The defendant objected to the advocacy letters on the grounds that the applicant’s communication to the AME’s constituted “information” because the applicant’s attorney included language about the duties of the AME in determining specific issues such as Benson, Almaraz/Guzman and the rule regarding 104 weeks of TTD. They also supplied the AME with a functional capacity evaluation form with instructions for the AME to fill out the FCE form. The defendant had specifically objected to the submission of the FCE form to the AME’s.

Despite the objection applicant’s attorney sent the letters anyway. The defendant filed a DOR seeking to resolve issues related to applicant’s submission of the advocacy letter without its agreement.

The case was set for trial and the WCJ made a determination that the letters did not constitute information [which would have been prohibited by Labor Code §4062.3(f)] but instead constituted only a “communication” which does not need to be agreed to by opposing counsel as long as it is served on opposing counsel at the time it is submitted to the AME/PQME.

Defendant filed a Petition for Removal contending that the letters should be considered “information” because they were “non-medical records relevant to the determination of a medical issue”, included the applicant’s legal position and had the effect of directing the AME to a favorable result.

The Board remanded the case back to the trial judge to make a determination as to whether the letters actually constituted “information” or whether they were a mere “communication.”

The en banc Board stated that if the advocacy letter merely references the information that the parties had agreed to send to the AME or QME then making references to those records, reports or deposition transcripts would not constitute “information”. However where there is an objection by one party to the submission of any “information” and there is a reference to that information in the communication, then that would be prohibited. The Board specifically noted that: “Only when the correspondence contains references or encloses “information” which the parties have not agreed to provide to the AME does it violate section 4062.3(c).”

In the footnote to this statement the Board notes that “litigants are entitled to reference (1) records prepared or maintained by the employee’s treating physician or physicians, and (2) medical and non-medical records relevant to the determination of the medical issue in advocacy letters if the parties have previously agreed to provide that referenced information to the AME.”

The Board also addressed the defendant’s contention that arguing or discussing the law or a legal position does not constitute “information” which would leave both the applicant and the defendant free to not only reference the documentation that has been sent to the AME without objection, but also to discuss the relevance of that information and the position of the party in regard to the meaning of that information without the communication becoming prohibited “information.”

WHAT THIS MEANS FOR YOU

This case frames the argument with regard to what a party can reference in an “advocacy letter”. It sets forth parameters for the letter by noting that if there is reference to “information” that has been objected to by the other party then the letter itself would become a prohibited communication.

However when the parties agree to the documents and reports that are going to be submitted to the AME then any discussion of the relevance of that information or pointing out specific information in the records for specific scrutiny would not be a prohibited communication.

Where there is an objection to the submission of any documents or information to the AME or PQME one either must not make reference to it or one must go the Board to get a ruling on the objection before sending out the letter.

The bottom line is that engaging in “legitimate” advocacy does not transform a correspondence with a medical examiner from “communication” into “information.” However if the advocacy is not legitimate – in other words it references a misrepresentation of the law or the facts or engages in fallacious arguments intended to deceive then it could be considered “information”. Otherwise your advocacy letter can do exactly what it is supposed to do, i.e. advocate.

Prepared by Larry Preece, Esq., GMK Orange County Office

WHAT IS A LEGAL “ADVOCACY LETTER”?

MARKHAM v. CALIFORNIA DEPARTMENT OF REHABILITATION

On January 23, 2016 the WCAB issued an en-banc decision addressing the issue of what is “information” and what is a “communication” for purposes of advocacy letters to be submitted to an AME or a QME. En banc decisions are binding precedent on all WCAB panels and judges.

In Markham, the applicant’s attorney submitted advocacy letters to three AME’s. The defendant objected to the advocacy letters on the grounds that the applicant’s communication to the AME’s constituted “information” because the applicant’s attorney included language about the duties of the AME in determining specific issues such as Benson, Almaraz/Guzman and the rule regarding 104 weeks of TTD. They also supplied the AME with a functional capacity evaluation form with instructions for the AME to fill out the FCE form. The defendant had specifically objected to the submission of the FCE form to the AME’s.

Despite the objection applicant’s attorney sent the letters anyway. The defendant filed a DOR seeking to resolve issues related to applicant’s submission of the advocacy letter without its agreement.

The case was set for trial and the WCJ made a determination that the letters did not constitute information [which would have been prohibited by Labor Code §4062.3(f)] but instead constituted only a “communication” which does not need to be agreed to by opposing counsel as long as it is served on opposing counsel at the time it is submitted to the AME/PQME.

Defendant filed a Petition for Removal contending that the letters should be considered “information” because they were “non-medical records relevant to the determination of a medical issue”, included the applicant’s legal position and had the effect of directing the AME to a favorable result.

The Board remanded the case back to the trial judge to make a determination as to whether the letters actually constituted “information” or whether they were a mere “communication.”

The en banc Board stated that if the advocacy letter merely references the information that the parties had agreed to send to the AME or QME then making references to those records, reports or deposition transcripts would not constitute “information”. However where there is an objection by one party to the submission of any “information” and there is a reference to that information in the communication, then that would be prohibited. The Board specifically noted that: “Only when the correspondence contains references or encloses “information” which the parties have not agreed to provide to the AME does it violate section 4062.3(c).”

In the footnote to this statement the Board notes that “litigants are entitled to reference (1) records prepared or maintained by the employee’s treating physician or physicians, and (2) medical and non-medical records relevant to the determination of the medical issue in advocacy letters if the parties have previously agreed to provide that referenced information to the AME.”

The Board also addressed the defendant’s contention that arguing or discussing the law or a legal position does not constitute “information” which would leave both the applicant and the defendant free to not only reference the documentation that has been sent to the AME without objection, but also to discuss the relevance of that information and the position of the party in regard to the meaning of that information without the communication becoming prohibited “information.”

WHAT THIS MEANS FOR YOU

This case frames the argument with regard to what a party can reference in an “advocacy letter”. It sets forth parameters for the letter by noting that if there is reference to “information” that has been objected to by the other party then the letter itself would become a prohibited communication.

However when the parties agree to the documents and reports that are going to be submitted to the AME then any discussion of the relevance of that information or pointing out specific information in the records for specific scrutiny would not be a prohibited communication.

Where there is an objection to the submission of any documents or information to the AME or PQME one either must not make reference to it or one must go the Board to get a ruling on the objection before sending out the letter.

The bottom line is that engaging in “legitimate” advocacy does not transform a correspondence with a medical examiner from “communication” into “information.” However if the advocacy is not legitimate – in other words it references a misrepresentation of the law or the facts or engages in fallacious arguments intended to deceive then it could be considered “information”. Otherwise your advocacy letter can do exactly what it is supposed to do, i.e. advocate.

Prepared by Larry Preece, Esq., GMK Orange County Office

GMK Webinars

Goldman, Magdalin & Krikes, LLP will be presenting 6 Special Webinars throughout 2017 designed to give our clients an easy way to get the most updated information happening in the Workers’ Compensation industry.

You can sign up for as many of our one hour presentation Webinars that you would like. GMK will keep track of attendance and send all participants a Certificate of Attendance that can be used for continuing education credits.

Our first GMK Webinar will be in March with additional information coming to you soon in another GMK Alert. All clients interested in participating in the GMK Webinar’s will need to fill out the attached short form here. By filing out this form, you will receive all communications for the GMK Webinars.

Please complete the form, today and send to Dennise Don ddon@gmklaw.com.

We look forward to giving our clients another avenue for keeping track of Workers’ Compensation changes and training opportunities.

CHANGES IN THE NEW YEAR

The following is a brief overview of some of the changes in employment law (limited to changes in California state law or the City of Los Angeles) which may affect you as an employer as 2017 begins:

Minimum Wage - California minimum wage increases to $10.50 per hour on January 1, 2017 if you have 25 or more employees. [This increase will apply to smaller employers next year.]

Marijuana Use – Even with the passage of Proposition 64 which legalizes use of marijuana in California employers may continue to prohibit use, possession or having marijuana in the employee’s system at any time while working. Drug testing can continue to include testing for marijuana. There is no requirement for the employer to allow marijuana use, even medical marijuana. It is suggested that policies prohibit all drugs for which use is prohibited or restricted under state or federal law since marijuana continues to be an illegal drug under federal law.

Job Applications – With a few exceptions, inquiries related to juvenile court adjudications are prohibited. Additionally, employers in the City of Los Angeles are now prohibited from asking about criminal history on a job application. No inquiries of any kind about criminal history are allowed unless a conditional offer has been made to the applicant and then there must be an assessment (written) of the history as it relates to the employee’s job duties and position. Before adverse action is taken the individual must be allowed to respond to the assessment with additional information or documentation. Penalties under this ordinance will not be imposed until July 1, 2017.

DOL Exempt Salary Requirement – The DOL final rule that would significantly raise the federal exempt salary requirement, even above the current California level, has been stayed pending further action by the Texas District Court. However, based on the increase in minimum wage in California, the California required salary will increase to $43,480 per year or $3640 per month.

Cell Phones and Driving – In addition to prohibiting use of the phone or texting, California now prohibits any holding or use of a cell phone or other wireless communication device. Any use of such devices must be “hands free.”

Paid Sick Leave – The Los Angeles City Ordinance will apply to employers with 25 or fewer employees as of July 1, 2017. [Other City Ordinances (or changes in their Ordinances) related to Paid Sick Leave go into effect in 2017.]

Employer Notices – An employer must provide new employees (and current employees on request) with information on their rights regarding discrimination against victims of domestic violence, sexual assault, and stalking. However, the notice is not required until the Labor Commissioner provides a model notice which must be available by July 1, 2017. Employers also must notify employees that they may be eligible for the California (in addition to the federal) Earned Income Tax Credit.

Rest Periods – The California Supreme Court has issued a decision that on-call rest periods are not allowed. Rest periods must be uninterrupted. Therefore, an employee cannot be expected to be available to return to work during a rest period. The employer must relinquish all control over the employee during break time. This will be problematic for employers who have single employees at the worksite – e.g., security guards, sole clerk at a retail store or gas station, etc.

Restroom Accommodation – Single user toilet facilities must be identified as all-gender toilet facilities.

What this means for you - All employers should review their wage rates, benefits, and other policies and practices to ensure compliance with the above changes.

If you have any questions or require additional assistance please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.

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