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When policy, practice, and punishment collide and the art of discretion
By Brad Wixen, Esq.
In the case of Chaides v. The Kroger Company, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the Panel Qualified Medical Evaluator (QME) on the case evaluated the applicant several times and issued many supplemental reports and was likely on the verge of finalizing his opinions when his deposition was set. He advised the parties that his policy was only to proceed with deposition if there was prepayment of $1,000, which had to be received at least 11 business days before the deposition. Applicant’s attorney inferred from this a violation of Regulation 35.5(f) [R 35.5] which states that a QME must make themselves available for deposition within 120 days. (The Appeals Board also correctly noted that the dollar amount requested by the doctor may have exceeded fees allowed under Rule 9795 [R 9795] as well.) The WCALJ on the case accepted applicant’s argument and found that there was nothing in the California Code of Civil Procedure that required prepayment before making oneself available for deposition. Accordingly, the doctor’s reporting was rescinded. The Judge did not seem to be unaware of the common practice of doctors in the industry, which is, in fact, to establish such billing practices as a prerequisite to cross-examination. The Judge in his opinion in fact wrote that, “This ruling is, in the opinion of the undersigned, a fair resolution and warning to the doctor to comply with appropriate rules and laws regarding reporting before the WCAB.” Thus, teaching a lesson and establishing a warning were paramount in the Judge’s reasoning.
(Publisher’s Note: Citations link to lexis.com; bracketed cites to Lexis Advance.)
Defendant alleged that the QME should not be replaced and filed a Petition for Removal. On Removal, a split WCAB panel noted the numerous evaluations and supplemental reporting and alluded to “perceived doctor shopping via the use of procedural challenges” which “should be discouraged.” At the same time, the majority of the WCAB panel admitted that Labor Code Section 5710 [LC 5710] did require application of the Code of Civil Procedure. Without actually deciding the issue as to whether the doctor had violated the law, the Commissioners stated that the doctor “may be subject to sanction, discipline, or other regulatory action by the medical director under the administrative director Rules” but that they would limit their analysis to the issue of “whether the deposition policy in itself, entitles either party to replace him without consideration of any other factors.”
Based on this, the majority of the WCAB panel determined that “significant prejudice or a irreparable harm” would occur absent their agreement for removal and rescinding the Judge’s Order, and they therefore allowed the QME to remain on the case. Commissioner Sweeney dissented, arguing that there had been a failure to demonstrate significant prejudice or irreparable harm absent removal from a final order and accordingly removal should not be granted.
In a very similar case, the ultimate outcome was identical but the legal reasoning behind it contradictory. In the case of Giron v. Ari Thane Foam Products, 2016 Cal. Wrk. Comp. P.D. LEXIS --, again, applicant’s attorney moved for replacement of the panel QME. This time because the doctor insisted on a $1,000 fee for record review before proceeding. The Judge on this case stated that “the parties could have sorted out the dispute on payment after the time of deposition” and so refused to strike the panel. When this case went up for Petition on Removal, this time a different WCAB panel determined that such issues are not in fact a demonstration of substantial prejudice or an irreparable harm and let the ALJ’s decision stand.
In both cases, the court was discouraging use of the Regulations to obtain a new panel. However, the first case granted the Petition for Removal, insisting that there was irreparable harm and prejudice. The second case denied removal, stating there was no irreparable harm and prejudice in such a scenario.
Commentary & Analysis
There does appear to be a story behind the story in these outcomes. The applicant’s attorney may well have had his own reasons for wanting to strike the report. The Judge in Chaides definitely wanted to set a precedent and teach the QME a lesson. The WCAB, while acknowledging a contradiction between the Regulations and the doctor’s practice, was clearly afraid of opening the “floodgates” for litigation involving technicalities to strike reports for potentially ulterior motives. Behind all of this is the common practice of most doctors to establish their own rules and most parties abiding by those rules. And what resulted was the WCAB panel utilizing the removal procedure at its will deciding whether irreparable harm or prejudice exists on seemingly a case-by-case basis irrespective of similar fact patterns.
This is not the first time such issues have been raised. In the case of Trapero v. WCAB (2013) 78 Cal. Comp. Cases 183 [78 CCC 183] (writ denied), an AME was indeed removed from the case because he violated Labor Code Sections dealing with service of nonmedical records at the time of deposition without the prior consent of opposing counsel. Similarly, in Athens v. WCAB (Santa Maria) (2013) 78 Cal. Comp. Cases 744 [78 CCC 744] (writ denied), a physician who engaged in improper communication had his report excluded. However, compare this to State Farm v. WCAB (Pearson) (2011) 192 Cal. App. 4th 51, 76 Cal. Comp. Cases 69 [76 CCC 69], in which a decision was rendered that violation of ex parte communication pursuant to the California Code of Regulations did not require that a report of the medical examiner be disqualified. Even more exotic are the cases of Orthopedic Care Center v. WCAB (Hairston) (2010) 75 Cal. Comp. Cases 1219 [75 CCC 1219] (writ denied) and Stokes v. Patton State Hospital (2007) 72 Cal. Comp. Cases 996 [72 CCC 996] (Appeals Board Significant Panel Decision), both of which had the Court considering disallowance of any liability for reporting given potential violations of licensing and accreditation.
There are several takeaways from these cases. First, the courts really do not want the parties manipulating the system based on technicalities. Secondly, the decisions appear to be on a case-by-case basis. None of the decisions cited above are binding on subsequent Courts. Third, even in Chaides, the Court notes that there had been significant reporting prior to the question coming before them. In both Chaides and Giron, the Courts stated that although the doctors had apparently illegal policies, there was no evidence that the doctor actually refused to make himself available.
Due process and the right to question a physician are certainly nothing to take lightly. The Regulations themselves do allow for discipline that could conceivably include disallowance of the QME evaluation. The smart physician will make himself available and attempt to comply with all Regulations. The smart legal practitioner, when a physician refuses to proceed and asserts policies that contradict the Regulations, should proceed with deposition on notice, obtain a certificate of nonappearance, and then go back to the WCAB. Under these circumstances, there would likely be a very different outcome.
Read the Chaides noteworthy panel decision.
Read the Giron noteworthy panel decision.
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