Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4062.3(b)
Labor Code section 4062.3(b) prohibits serving information to a QME without serving the opposing party 20 days prior.
The Board found that the simultaneous service of Kite summaries and excerpts to Dr. Turek violated this statute.
From the decision · page 1Applicant seeks removal of a June 18, 2025 Findings and Order (F&O) wherein the
workers' compensation administrative law judge (WCJ) ordered replacement of psychiatric panel
Qualified Medical Evaluator (PQME), Dr. Peter Turek, based upon a finding that applicant's
service upon Dr. Turek of "summaries and excerpts from the Kite decisions" constituted
"information" in violation of Labor Code1 section 4062.3(b). (F&O, June 18, 2025, p. 2.)
Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136
The WCJ has wide discretion to fashion remedies for violations of section 4062.3(b), including replacement of the QME.
The Board reviewed the WCJ's exercise of discretion and found it lacked sufficient rationale.
From the decision · page 5With respect to remedies available in such instances, we concluded that although there is
no specific Labor Code section which addresses the issue, Maxham and Suon provided guidance.
Pursuant to Maxham, "[i]f the WCJ determines that applicant improperly provided `information'
to the AMEs, he has wide discretion in fashioning an appropriate remedy for the violation of
section 4062.3(c)." (Maxham, supra, at p. 147.) Maxham, however, only addressed situations
involving improper "information" having been provided to an AME, in violation of section
4062(c), and the WCJ's wide discretion in fashioning an appropriate remedy for such a violation.
Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803
Factors to consider in remedying violations of section 4062.3(b) include prejudicial impact, timeline, good faith efforts, and constitutional mandate for substantial justice.
The Board applied these factors and found the WCJ's order insufficiently justified.
From the decision · page 5In Suon, we addressed the issue of a violation of section 4062.3(b) as it relates to a QME,
and stated that: 1) information that a party proposes to provide to the QME must be served on the
opposing party 20 days before it is provided to the QME; 2) medical records and nonmedical
records are treated differently by the Labor Code; and 3) if the parties are unable, in good faith, to
informally resolve the dispute about what information is to be provided to the QME, then the trier
of fact has wide discretion in fashioning an appropriate remedy for a violation of section 4062.3(b)
pursuant to the Appeals Board's judicial powers to address discovery disputes. We further held
that:
Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686
The right to cross-examine the PQME or request supplemental reports may be less drastic measures than replacement.
The Board noted that the WCJ did not consider these less drastic measures adequately.
From the decision · page 1Applicant contends that the WCJ's F&O lacks "careful and accurate review" and fails to
"prove prejudice[,]" or show why, pursuant to the recent case of Vigil v. County of Kern (2024) 89
Cal.Comp.Cases 686 (Appeals Bd. en banc), defendant couldn't simply cross examine Dr. Turek
or request a supplemental report in order to determine whether Dr. Turek "did or did not rely on
proper legal principals or truthful facts" in the writing of his opinion. (Petition, pp. 3, 12.)