California: Ex Parte Communications

What would you do in the following hypothetical?

Let’s say Judge Whopper appointed Dr. Zeus as a “regular physician” to determine the injured worker’s level of Whole Person Impairment (WPI) in a case you are handling. Neither the treating doctor’s report, nor the Panel QME’s report, constituted substantial evidence on the issue of permanent disability (PD). So, pursuant to LC §5701, Judge Whopper appointed Dr. Zeus to address the PD issue.

Judge Whopper wrote a letter to Dr. Zeus explaining the situation and telling him that all of the medical evidence was enclosed for his review and consideration. Unfortunately, Judge Whopper’s clerk forgot to include a few critical medical reports in the envelope, before he sealed it up and sent it on its way. When Dr. Zeus read the letter from Judge Whopper, he noticed that a few reports were missing. Dr. Zeus gave you a call and asked if you would send him copies of the missing reports. What should you do?

(a)   Hang up the phone without saying a word.

(b)   Have a long discussion with Dr. Zeus about your slant on the case.

(c)   Restrict your conversation to procedural issues only, but tell Dr. Zeus you’ll have your assistant send him the missing reports by overnight mail, and that you’ll also copy opposing counsel with a duplicate package of reports.

If you did anything but choice “(a)” – “hang up the phone without saying a word,” you might be in violation of AD Rule §10718. And, according to the panel decision of Oseguera v. Links (2010) 2010 CWC PD LEXIS 60*, Dr. Zeus’ report may well be stricken from the record.

Ex Parte Communication Rules for “§5701 regular physicians”:

AD Rule §10718 provides: “All correspondence concerning the examination and reports of a physician appointed pursuant to Labor Code Section 5701 or 5703.5 shall be made through the Workers’ Compensation Appeals Board, and no party, attorney or representative shall communicate with that physician with respect to the merits of the case unless ordered to do so by the Workers’ Compensation Appeals Board.” (Emphasis added.)

AD Rule §10718 tells us that the attorney can’t call up the doctor and chat about the case, or even offer to provide additional medical reports. But in the Oseguera case, it was the doctor who phoned the attorney, not the other way around. Regardless, the WCAB still found that act violated AD Rule §10718 and tossed the report.

AD Rule §10718 also limits violations to ex parte communications that are “with respect to the merits of the case.” Does that mean that ex parte communications are permissible if they are administrative or procedural, in nature and not substantive? Apparently not, according to the panel in the Oseguera case. In that case, the doctor called the defense attorney to ask for the missing medical records, that the Judge had forgotten to enclose with his letter. There was no allegation in that case that a there had been a substantive communication on the merits of the case between the doctor and attorney. However, there was an ex parte telephone call between the doctor and the defense attorney, of which the applicant attorney was not a participant.

The doctor in the Oseguera case should have requested the records from the judge, and not from one of the attorneys in the case. And the attorney should have told the doctor that he was prohibited from talking to him ex parte. The attorney should have instructed the doctor to address any questions he had to the judge in the case.

Ex Parte Communication Rules for AMEs & QMEs:

Would the result be different if the doctor is an AME or QME, rather than a §5701 physician? The pertinent rule for AME/QME communications would be LC §4062.3(f) which prohibits ex parte communications between a party and the AME or QME.

LC §4062.3(e) allows parties to send their “AME/QME” letters to the doctors, as long as they also serve a copy on opposing counsel. This would not be considered an ex parte communication, since all parties are aware of all information that is being communicated. (See also AD Rule §35[g].) If a party communicates ex parte with the AME or QME, the opposing party may obtain a new doctor to evaluate the injured worker. (See also AD rule §35[k].)

The language of LC §4062.3(e) appears to prohibit all ex parte communication between the physician and the parties, including both substantive and procedural requests. In fact, LC §4062.3 has stringent kicker language tacked on at LC §4062.3(g) which warns that if there is an ex parte communication, not only will the medical report be tossed, but the offending party may be tossed in workers’ comp jail as well!?! LC §4062.3(g) provides that the party making the prohibited communication may be charged with contempt and may be liable for all costs related to obtaining a new medical evaluation.

So you might want to make sure all of your offices’ phones have caller ID, and as an added precaution, don’t answer the phone if a doctor is calling.

* PUB-STATUS: CAUTION: The Oseguera v. Links decision has not been designated a "significant panel decision" by the Workers' Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citable authority, particularly on issues of contemporaneous administrative construction of statutory language (see Griffith v. WCAB [1989] 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145). However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges (see Gee v. Workers’ Comp. Appeals Bd. [2002] 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236). LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers' compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

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