Ex Parte Communication Disqualifies Medical Examiner

Monday, April 18, 2011 | 0

By Tamar Hawk and Seema Savur
Grancell, Lebovitz, Stander, Reubens and Thomas

A 100% disability stipulation was entered into for an industrial injury to Francisca Apparicio with open future medical care.

The applicant’s husband filed a lien for home health care services. The workers' compesnsation judge ordered the parties to have Dr. Donna Barras provide an expert opinion on the issue. Without giving notice to defendants, opposing counsel set an evaluation with Dr. Barras and sent her several medical reports. defendants moved to strike the resulting Dr. Barras report because of lack of notice and because opposing counsel provided Dr. Barras with incomplete records.

The WCJ found ambiguity in the doctor’s report and ordered the parties to submit jointly all records for a supplemental report. The resulting Findings and Award reimbursed the husband a total of $1,520,640 for 24 hours of daily attendant care of his wife at $30 per hour, based on a licensed vocational nurse rate. defendants petitioned for reconsideration. Evidence indicated the husband provided 2.75 hours of medical services daily, with the remainder being housekeeping services which defendants argued were not reimbursable as medical care at $30 per hour.

On Petition for Writ, the 2nd District Court of Appeal held that Applicant’s ex parte communications with the medical examiner violated the prohibition against such communications in workers’ compensation regulations, which require striking the medical examiner’s reports and disqualification of the medical examiner. While this case dealt with ex parte communications with a court appointed medical evaluator under Labor Code Section 5701, Labor Code Sections 4062.3 (e) and (f) similarly prohibit ex parte communications with an AME or QME. There are no exceptions for procedural communications or for other classes of ex parte communications which are not on the merits. (See, Alvarez v. WCAB (2010) 187 Cal.App.4th 575, 586-588.) Because the medical evaluator was disqualified, the finding on the need for home care services had to be revisited by the trial court.
In that regard, the Court of Appeal held that the award for home-care services 24 hours per day, seven days per week was unreasonable and not supported by substantial medical evidence. Many of the services did not constitute “treatment” which was provided to an applicant to cure or relieve the effects of the industrial injury. Section 4600(a) specifies medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, etc., but does not include services of a housekeeping nature.

The Court noted Smyers v. WCAB (1984) 157 Cal.App.3d 36 which holds that when a doctor prescribed housekeeping services for medical reasons, they could be reimbursed under Section 4600 as medical treatment. This issue was ultimately remanded.

Here are some helpful practice points:

1. Be sure that all communications with medical evaluators are in writing and served on the opposing party 20 days before an initial evaluation. Any subsequent communication with the medical evaluator should be in writing and served on the opposing party when sent to the medical evaluator. (Labor Code §4062.3).

2. If there are grounds for objecting to an ex parte communication, object immediately after discovering the grounds and seek a replacement evaluator. Do not wait for an objectionable report to be received. A red flag should be raised when family, friends or other interested parties are present during the evaluation.

3. Home healthcare reimbursement requests should be set forth with specificity, preferably, pursuant to a prescription from applicant’s primary treating physician. Care should be taken when processing the request through utilization review.

4. If UR does not certify the prescription, the issue can be addressed by the medical evaluator. Limit the medical evaluator’s opinion to a strict application of what is medically necessary. Depositions of the home health care attendant and/or medical evaluator may be warranted.

WorkCompCentral subscribers may download the case here:
http://www.workcompcentral.com/pdf/2011/misc/Oseguera02012010.pdf.

Tamar Hawk and Seema Savur are attorneys in the San Jose office of Grancell, Lebovitz, Stander, Reubens and Thomas, a workers' compensation defense law firm. This column was reprinted with the firm's permission from its quarterly newsletter.