CA: Court of Appeal Grants Rehearing in Alvarez v. WCAB (Ex Parte Communication)

LOS ANGELES, CA – The California Court of Appeal, Second District, has vacated the published decision of Alvarez v. W.C.A.B. and granted the State Compensation Insurance Fund’s petition for rehearing on June 11, 2010.

In Alvarez v. W.C.A.B. (2nd—B218847), reported at 75 Cal. Comp. Cases 397, the Court of Appeal held that Calif. Labor Code § 4062.3(f) expressly prohibits ex parte communications with a panel Qualified Medical Examiner, with the only exception, as set forth in Calif. Labor Code § 4062.3(h), being for a communication by an employee or deceased employee’s dependent in connection with the examination, and that, in the event of an unauthorized ex parte communication, Calif. Labor Code § 4062.3(f) permits the aggrieved party to obtain a new evaluation from another QME.

In this case, the Court of Appeal found that the panel QME telephoned defense counsel to request an additional copy of medical records that the QME could not locate, that the statute, contrary to the WCAB's conclusion, is not limited to situations in which the party initiates ex parte communication, that the statute does not state that ex parte communications are permissible if the subject matter is administrative or procedural rather than substantive or on merits, and that prejudice, or lack thereof, is not to be considered in determining whether the statute has been violated.

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Source: California Court of Appeal, Second District