QME Ex-parte Contact Addressed by Appellate Court

Thursday, May 20, 2010 | 0

By Richard M. "Jake" Jacobsmeyer
Shaw, Jacobsmeyer, Crain, Claffey & Nix

The 2nd Appellate District, in reversing a Workers' Compensation Appeals Board  panel decision, has applied a strict interpretation of the rule prohibiting ex-parte qualified medical evaluator contact holding any ex-parte contact between a party and a QME, regardless of who initiates the contact or the nature of the discussion is a violation of Labor Code § 4062.3(f) and allows the aggrieved party to obtain a new QME evaluation from a new panel.

In Alvaraz v WCAB, the QME in a death case had issued a report finding the claim not-compensable.  His report references some investigative materials that at deposition he was not able to produce. The parties agreed he would review his file and identify the specific information that he reviewed. After searching for the materials, the QME was not able to locate the requested information. He then called the defense attorney directly and requested a new copy of the
materials be forwarded. The defense attorney discussed the issue of the records briefly and wrote a letter to the Applicant Attorney disclosing the conversation and suggesting the file materials be resent to the QME.

Applicant attorney made a motion at the WCAB for a new QME, citing Labor Code  Section 4062.3(f) arguing the ex-parte communication with the QME and defense attorney entitled his client to a new evaluation as the prior QME evaluation was now tainted. The workers' compensation judge and the WCAB. accepted the explanation of the defense attorney as to the nature of the discussion and adopted a no harm no foul approach:

The workers' compensation administrative law judge (WCJ) issued a findings and order that there was no improper ex parte communication between defense counsel and the panel qualified medical evaluator in violation of Section
4062.3.  The WCJ also denied Alvarez's petition to strike Dr. Miller's report and request for penalties and sanctions.  In his opinion, the WCJ explained that the findings and order were based on the credible and unrebutted testimony of defense counsel.

The WCJ explained that ex-parte communications are not prohibited or improper when they involved only administrative or procedural matters and not the merits of the case or either side gains an advantage. The WCAB denied Alvarez's petition for reconsideration and agreed with the  WCJs report that the ex-parte communication was initiated by Dr. Miller and concerned an administrative rather than a substantive matter. 

The WCAB explained that, The purpose of Section 4062.3 is to protect the impartiality of the medical-legal process, and a party who initiates communication without prior notice to the opposing party may be perceived by the QME as attempting to influence the process.  That did not happen here. (See Carchidi v. Workers Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 291 [writ denied].)[1]  The WCAB added that the ex-parte communication related back to an administrative matter discussed at the deposition, which was not ex-parte. The WCAB also concluded that Section 4062.3 is concerned with a party initiating an ex-parte communication, which did not occur here.

The Court of Appeal took a much stricter approach to the ex-parte contact regardless of who initiated or the substance of the discussion.  That Court was also unimpressed with the distinction drawn by the WCJ/WCAB between substantive and procedural issues in such communications:

"The statutory language clearly evidences the intent of the Legislature to prohibit unauthorized ex-parte communication, whether written or oral, between a party and an agreed or panel qualified medical evaluator.  The regulations pertaining to qualified medical evaluators, although effective Feb. 17, 2009 after the event in issue herereflect the prohibition of
ex-parte communications with a qualified medical evaluator as set forth in Section 4062.3, and provide that even a single violation can result in discipline.

Section 4062.3 does not provide that some ex parte communications are permissible, as suggested by the WCJ and WCAB.  Although Section 4062.3 sets forth detailed procedures by which parties are to disclose information and
records to the medical evaluator and provides remedies for violations of those procedures, the statute does not distinguish between ex-parte communications on the basis of whether the communication was initiated by a party or by the medical evaluator.  To hold that the statute does not proscribe ex parte communications initiated by the medical evaluator would
suggest that a party is excused from the proscriptions of Section 4062.3 and may discuss the merits of the case with the medical evaluator based solely on the fortuity that the medical evaluator initiated the conversation. To so hold would undermine the statutes purpose.

Section 4062.3 also does not state that ex-parte communications are permissible if the subject matter is administrative or procedural rather than substantive or on the merits.  The only statutory exception to the proscription against ex-parte communications is set forth in Section 4062.3, subdivision (h), which concerns communication by the employee or the
deceased employees dependent in the course of or in connection with the examination."

The Court also indicated the applicant attorney could reasonably feel some level of discomfort that the QME felt comfortable enough to call the applicant attorney directly and discuss this matter in spite of the clear prohibition contained in the QME regulations against ex-parte contact. The Court noted the prohibition on such contact was intended to prevent the need to assess whether such contacts were benign or not but prohibiting them.

The matter was remanded with the W.C.A.B. ordered to provide another panel for applicant.  The Appellate Court did not address the issue of whether applicant was also entitled to sanctions, costs and penalties. Sanctions would have to be awarded based on Labor Code § 5813 and certainly in this case, there is no evidence of conduct that would support such an award. However the applicant attorney might be entitled to some costs (in addition to those awarded by the appellate court) as the statutory provision seems to make the award of costs associated with the statutory breach (which would
certainly include the cost of a second eval). There is no provision for an award of attorney fees absent a Labor Code § 5813 sanction.

Commentary:

In case there was any doubt before regarding brief contacts with QME's on issues such as records; this case would seem to resolve those issues firms on the side of prohibiting any ex-parte contact. The WCAB and the WCJ certainly took a much more pragmatic approach than did the appellate court. However the higher court was clearly concerned about where to draw the line between inconsequential contact and meaningful discussion. It resolve that issue by interpreting the statutory language in its strictest fashion and prohibiting all contact of an ex parte nature not otherwise authorized by stature.
 
The moral of the lesson for attorneys and adjusters has to be, "Don't take that call." And for doctors, "Don't make that call."

Subscribers may read the 2nd DCA's ruling by clicking the case title in the sidebar.

Richard M. "Jake" Jacobsmeyer is a partner with the Shaw, Jacobsmeyer, Crain, Claffey & Nix workers' compensation defense law firm in Oakland.