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, is of paramount importance and should never be overlooked. It is the entire constellation of this conduct that must be viewed in order to determine the appearance of impropriety.
3. Be careful in your communications. The bottom-line recommendation is for defendants to in almost every case make sure that communication with a medical-legal evaluator is provided to applicant’s attorney’s office as well. For purposes of merely scheduling an appointment or confirming the applicant’s attendance at evaluation, there is not necessarily a requirement to copy an applicant’s counsel. However, whenever there is any inquiry into the substantiality or necessity of a report, or some other issue that is not simply perfunctory, it is our recommendation to always copy opposing counsel with communication.
The medical-legal process was designed to make the Workers’ Compensation system more efficient. Adherence to appropriate conduct and paying attention to the rules regarding communications will almost always make the process smoother for everyone. However, when there is evidence that supports the claim of an improper or ex-parte communication, the defendant has an obligation to thoroughly investigate further and challenge the QME and their report if appropriate.