The Second Appellate District has issued a published decision in the matter of Alvarez v. WCAB which takes a literal approach to labor code 4062.3(e) which prohibits ex parte communication with the panel QME.
The facts of the case best illustrate the point.
In a denied death case, the panel QME received 635 pages of medical records from the defendant in support of their denial of the claim. The doctor’s deposition was taken, and he could not recall where in the stack of medical records he had obtained certain facts supporting his opinion that the death was non-industrial. Subsequent to the deposition, the panel QME telephoned the defense attorney’s direct telephone line and requested an additional copy of eight pages relevant to his determination. The extent of the conversation was that the defense attorney would arrange for the missing eight pages to be forwarded to him by the adjuster.
Defense counsel duly reported to applicant attorney by letter that the telephone call had been received, and the additional copies of the records were being forwarded to the QME. Upon learning of the "ex parte communication telephone call”, the applicant attorney petitioned under labor code 4062.2(f) for the issuance of a new panel QME.
There was no testimony, no allegation, and no inference, that the telephone call initiated by the panel QME to defense counsel was used in any manner to influence the outcome of the QME's report. At trial, WCJ found there had been no improper ex parte communication with the QME on these facts. Applicant appealed.
The WCJ’s rationale was that ex parte communications are not improper where they involve only administrative or procedural matters and not the merits of the case were either side gains an advantage.
The WCAB agreed with the WCJ and denied reconsideration. Applicant appealed.
The Court of Appeal took a different and literal view. "Section 4062.3 does not provide that some ex parte communications are permissible, as suggested by the WCJ and the WCAB. Moreover, the statute does not distinguish between ex parte communications which are initiated by a party or by the medical evaluator”. The Court of Appeals cited reference by analogy to the California Code of Judicial Ethics and indicated that in judicial and arbitration proceedings a judge or arbitrator may communicate with a party in the absence of other parties about administrative matters, such as setting the time and place of hearings or making other arrangements for the conduct of the proceedings, as long as the arbitrator reasonably believes that the communication will not result in a procedural or tactical advantage for any party. However, the court found no such exceptions existed in labor code section 4062.3, because evaluating physicians do not have the same background that judges and arbitrators do to draw the proper distinctions. The Court of Appeal granted the applicants request for a new panel, and awarded costs of the appeal to the applicant attorney.
What This Means for You
Never initiate a telephone call to a panel QME for any reason other than scheduling. More importantly, never call or take a call from a panel QME under any circumstances. A labor code 4062.3 letter copying the opposing party may be sent at any time after the appointment has been scheduled, and all communications with the QME must be by deposition or by labor code 4062.3 letters. No exceptions, no fudges, no communications at all except in the presence of, or by copy to, the other side.
© Copyright 2010 Goldman, Magdalin & Krikes LLP. All rights reserved. Reprinted with permission.