Law

What constitutes improper ex-parte communication with a medical-legal evaluator? Labor Code § 4062.3 provides in relevant part the following: (e) All communications with a Qualified Medical Evaluator selected from a Panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the Evaluation. Any subsequent communication with the Medical Evaluator shall be in writing and shall be served on the opposing party when sent to the Medical Evaluator… (g) Ex parte communication with an Agreed Medical Evaluator or Qualified Medical Evaluator selected from a Panel is prohibited. If a party communicates with the Agreed Medical Evaluator or the Qualified Medical Evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another Qualified Medical Evaluator to be selected according to Section § 4062.1 or § 4062.2. Keeping this in mind it is also well understood that Rule 35(b)(1) allows for some direct communication with a Medical Legal Evaluator or the physician’s staff “relative to non-substantive matters such as the scheduling of appointments, missed appointments, the furnishing of medical records and reports, and the availability of the report” The recent WCAB decision in Lon Martinsen v. H&H Enterprises/Zenith Insurance (2023), 88 Cal.Comp.Cases 638 tackled the issue of what constitutes improper ex-parte communication that would justify an Order for a Replacement Panel of medical-legal evaluators. While the case decision has not been designated as a “significant” decision and was not en banc decision (decided by the entirety of the Workers’ Compensation Appeals Board), it is nonetheless an insightful look into the issues and disputes that can arise in our cases. In Martinsen, the Panel of WCAB commissioners issued a “split decision” (two in favor and one dissent) in which it was determined that communication from a Panel Qualified Medical Evaluator to applicant’s attorney’s office did not rise to the level of ex-parte communication despite several disconcerting facts and circumstances. The QME made contact with applicant attorney’s office to inquire into whether or not previously submitted surveillance videotape should be reviewed, and when it should be reviewed. At Trial, the Judge found that the applicant’s attorney’s office had engaged in ex-parte communication and ordered a new Panel to be issued. On Appeal to the WCAB, the majority determined that based on the facts and circumstances that there was no nefarious attempt to conspire with applicant’s attorney and the communication with applicant’s attorney’s office was a simple request for clarification on when and whether the QME should review surveillance video. The underlying facts of the case reveal that there was a dispute pertaining to whether or not the QME should have been replaced on multiple issues. During the litigation, the QME reached out on a unilateral basis to applicant’s counsel to inquire into whether or not he should review surveillance video. This was viewed by the WCAB majority as an innocent and non-substantive piece of communication relative to the issuance of a report. However, there was a dissent issued by the third commissioner, contending that the conduct by the QME rose the level of improper ex-parte communication in violation of Labor Code § 4062.3. The dissenting commissioner looked to a prior Court of Appeals decision in the case Alvarez v. WCAB (2010), 75 Cal.Comp.Cases 817, in which the Court had opined that an unqualified prohibition on ex-parte communication requires no showing of prejudice to invoke the appropriate remedy. Furthermore, the Alvarez court stated that this “strict rule” against ex-parte communication is justified in a field where the “impartiality and appearance of impartiality of the Panel Qualified Medical Evaluator is critical” The dissent went on to indicate that it agreed with the Trial Judge’s conclusion that the communication between the QME and applicant’s attorney’s office was an improper ex-parte communication, in that it was completely unclear why the physician sought clarification solely from applicant’s attorney regarding "when and how to proceed" with respect to viewing and commenting upon surveillance video. Standing alone, the commissioner stated that this communication may appear inconsequential. However, taken together with other conduct by the doctor’s office, including an earlier phone call with only applicant attorney’s office, as well as the physician’s denial of documentation of this communication during his deposition, and lack of disclosure of this documented communication to a defense in response to a subpoena, the evidence in the record is sufficient to “tip the scale” to reflect an appearance of impropriety by the QME that may only be remedied by a new physician. Again, while this was a panel decision by the WCAB and is not necessarily binding upon all Judges, it is nonetheless an insightful and revelatory decision. The issues concerning what constitutes ex-parte communication is in some instances extremely nuanced and will be determined by issues pertaining to how “consequential” the communication with a Physician turns out to be. As such, we here at Siegel, Moreno & Stettler had a few takeaways from this split decision: 1. In our view, the communication does not need to be “prejudicial” or in any way nefarious to be considered arguably ex-parte communication violation of Labor Code § 4062.3. While the majority opinion in this particular case focuses upon the potential motive behind the communication, we will continue to argue that motive is not the determining factor. Instead, the overall impropriety or the appearance of impropriety is of paramount importance: 2. Details matter. In our view, whether or not we can establish improper ex-parte communication depends upon the entirety of the parties conduct, not just one or two cherry-picked details. In this case, the dissenting Commissioner made very valid points that when viewed in a vacuum, one bit of communication between a QME and applicant attorney’s office may not be so consequential, but taken in light of the fact that the physician’s office failed to disclose evidence of prior communication within subpoenaed records to the defendant, and also denied this prior communication at the time of deposition,

Potential Expansion of Presumptions for PTSD In the ever-changing landscape of California Workers’ Compensation, lawmakers have proposed numerous bills during the current legislative session which would make many additional presumptions and provide workers with additional benefits. There are currently approximately five legislative proposals that would make law enforcement employees, lifeguards, nurses, first responders, and prison employees eligible for presumptions stating that a claim for post-traumatic stress disorder is compensable. Lawmakers are currently concerned that first responders are more susceptible to PTSD based on the nature of their employment. Below are a list of current proposals that seek to expand the scope of presumptions: AB 1107– This bill would addadditional employees from the Department of Corrections and Rehabilitation and California State University Police Departments to the PTSD presumption. This bill would have the most impact on employees responsible for law enforcement activities, including transporting inmates. AB 1156– This bill would create a presumption forworkers at acute care hospitals providing direct patient care. This bill would presume that infectious diseases, orthopedic injuries, PTSD, cancer, and various respiratory diseases are work-related. AB 1145– This bill would create a new PTSD presumption forqualified state medical providers working for the Department of Corrections and Rehabilitation, the State Department of Developmental Services, and the State Department of State Hospitals. Please note this includes psychiatric technicians, registered nurses, and other medical and social service providers. AB 699– This bill expands existing presumptions forfull-time members of the City of San Diego Fire-Rescue Department’s Boating Safety Unitand extend the existing timeframe for them to file. It would also expand the list of existing presumptions to include PTSD or exposure to biochemical substances. AB 597– This bill attempted to addpublic safety dispatchers(amended this bill on Feb. 23 to remove public safety dispatchers from the proposal).Paramedics, emergency medical technicians, and more firefighterswould be added to the existing PTSD presumption. OUR TAKE Currently, these bills are still in preliminary discussion and not necessarily close to becoming law. The bills would have to be approved by both the State Senate and the State Assembly. The Governor would have to sign them into law. However, if passed, these proposals are disconcerting as they propose a significant expansion in scope of presumptions and creates a “slippery slope” with no end in sight. The outcome is unknown, and we will continue to monitor these bills and their eventual outcome. Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template

Governor Newsom signs new bills – Will they affect you? Governor Gavin Newsom closed out the 2019 California legislative session this week by signing a slew of bills into law. He’s signed over 800 this year and vetoed 170. That’s a lot of new laws. The laws, which go into effect on January 1, 2020, create new rules for things from gun purchases to roadkill. We want to look at the laws that have to do with our corner of the world: workers’ compensation. AB 1804 – Requires any serious workplace injury to be reported immediately to CalOSHA. Notification can be given by telephone or by an unseen (so far) online mechanism. We read a lot of OSHA reports and we do notice that there can be a reporting lag. This is often due to the general chaos at a workplace these situations can create. At other times, clear chains of command and/or management structure are not understood or in place. Most simply, people don’t know who is supposed to do it and when. The law will definitely help give us more insight into these types of injuries. Since reporting is done immediately, the incident is more fresh in the mind of the reporter and can help establish facts sooner. AB 1805 – Currently, to define and injury  or illness as “serious” for workers’ compensation purposes, the injured worker must have an immediate stay in a hospital for at least 24 hours. This is no longer the case. The new law lifts the minimum hospital stay time. This will lower medical costs for hospitalization, but it also might increase the the size of claims as more and more injuries will qualify for the “serious” designation. The law also changes the definition of “serious exposure” to a hazardous substance to include “a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.” We believe this to mean (we’ll see what the courts say) that no physical harm has to be immediately present in order to declare the event a “serious exposure.” SB 542 – Expands workers’ compensation payments for psychiatric injury, including PTSD, for first responders. Currently, “presumptions” (workplace injuries that, for the most part, first responders are expected to suffer from) include heart disease, cancer and hernias. Psychological injury now has a stronger presence on the list of these presumptions because now, the worker does not have to prove that the injury was at leas 50 percent related to their job. Look for a lot more claims for psychological presumptions. AB 5 – One of the most contested bills in 2019 – not just in the work comp world, but in all of the legislation that came out this year, targets the “gig economy.” The law says that if a worker provides an essential function of their employer’s business, they are an employee of that business. No longer will businesses be able to lump these workers into the independent contractor category. These employees will now be entitled to benefits, including workers’ compensation. This far-reaching bill is really aimed at big companies like Uber who have thousands of these independant contractors that (depending on your point of view) perform functions essential to the business i.e.: Uber needs drivers to exist. But the law will also effect the construction, trucking, janitorial service, nail salons, adult entertainment, commercial fishing and media industries. Large tech companies already pledged their time and money to fight this. We’re always keeping an eye on developments with laws that affect our clients. Need more information? Contact us, or Give us a call! 619-525-7626 Search for: Search Archives Archives Select Month October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template