No Ex Parte Communication with QME?

Monday, July 26, 2010 | 0

By Aaron Hemmings
Grancell, Lebovitz, Stander, Reubens and Thomas

The 2nd District Court of Appeal ruled in Carlos Alvarez v. WCAB B218847 that a party was entitled to a new panel of QMEs under Labor Code section 4062.3(f) when the QME called opposing counsel regarding documentation supplied by that opposing party, overturning the WCAB.

Panel Qualified Medical Evaluator (PQME) Dr. Donald Miller testified in his deposition that he reviewed over 600 pages of records sent by the defendant and formulated his opinions in part due to his recollection of reviewing a particular document which he could not locate. Dr. Miller contacted the defense attorney attending the deposition and asked him for another copy of the document. The defense attorney wrote to opposing counsel the same day about the call, stating Dr. Miller initiated the call and that it was less than a minute. 

The WCAB did not find that an ex parte communication occurred on the basis it was the QME who initiated the communication and that nothing of substance was discussed. However, the 2nd District Court of Appeal concluded that there was no exception to the clear statutory language of Labor Code section 4062.3(f) that prohibits ex-parte communication between a party and a PQME or agreed medical evaluator, and that whether the communication prejudiced either side was irrelevant.
 
On June 1, SCIF attorney filed a successful Petition for Rehearing and Request for Depublication of the decision. SCIF’s arguments go to the very heart of the original, administrative purpose of the California workers’ compensation system which favors a more informal system that was intended to provide “substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character.” 
 
Defense counsel asserted that the court’s decision was misguided when it found that “prejudice” was not a consideration, and pointed to the increased costs and delays that would result. Further, the defense points out that the QME’s action was in response to an agreement between the parties. The court’s decision to rehear the case based on these arguments will further define whether we are to continue moving towards an increasingly formal, legal system.

Interpreter Fees. The WCAB issued a panel decision in Villegas v. Campos Tacos ADJ908115 holding that interpreters are entitled to compensation for time spent at hearings despite the finding against the applicant that he was not an employee. The WCJ denied the lien claim, but the WCAB reversed and found that the lien claimant was entitled to compensation for her time at hearings, depositions and other settings deemed necessary by the administrative director.  The commissioners based their decision upon Labor Code section 5811(b), which states that qualified interpreters may collect fees that are reasonably, actually, and necessarily incurred per the fee schedule. 
 
WCAB Clarifies Roles of Physician, Rater and WCJ. The roles of the WCJ, physicians, and the DEU were clarified in an en banc decision in Blackledge v. Bank of America ADJ1735018. The WCAB concluded that a physician’s role is to assess the applicant’s whole person impairment, the WCJ's role is to frame the rating instructions, and the DEU rater's role is to issue a recommended permanent disability rating based solely on the WCJ’s instructions.  However, the WCJ is not bound by the DEU’s disability rating per se, but the rating must be based upon substantial medical evidence. Moreover, there must be no ex parte communication between the WCJ and the rater.

Aaron Hemmings is branch manager for the Central Coast office of Grancell, Lebovitz, Stander, Reubens and Thomas. This column was reprinted with permission from the firm's client newsletter.