California: What Constitutes an Ex-Parte Communication Post-Alvarez?

California: What Constitutes an Ex-Parte Communication Post-Alvarez?

There have been a number of cases decided by the Workers’ Compensation Appeals Board (WCAB) dealing with Labor Code Section 4062.3 and what constitutes a prohibited ex parte communication with a Panel Qualified Medical Evaluator (PQME). Though many thought the Court of Appeal’s decision in Alvarez v. Workers’ Comp. Appeals Bd. (2010) 187 Cal.App.4th 575, 75 Cal. Comp. Cases 817, would settle the issue of what constitutes a prohibited ex parte communication, there continues to be significant litigation over the question.

In Alvarez, the Court of Appeal stated:

“...[A]n ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable. [...] Surely a mere ex parte greeting prior to proceedings or ex parte comment about the weather or traffic would not invoke the remedy under section 4062.3. This being so, neither should a communication unrelated to the case or so peripheral to the operative proceedings as to be insignificant. A certain amount of informality is anticipated in Workers’ Compensation Act proceedings. (§ 5708 [the WCJ and WCAB “may make inquiry in the manner... which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division”]; § 5709 [“no informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division”]; see Northwestern R. Co. v. Industrial Acc. Com. (1920) 184 Cal. 484, 489 [194 P. 31] [“The Workmen’s Compensation Act and the constitution both expressly require the commission to proceed without formality”]; County of Sacramento v. Workers’ Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1116 [92 Cal. Rptr. 2d 290, 65 Cal Comp. Cases 1] [in the workers’ compensation system, “[p]rocedural informality that would make the civil practitioner shudder is normal. But even a ‘flexible’ system must have structure”].)”

The question is where should that “line” be drawn between what is considered a permissible communication and a communication that violates Labor Code Section 4062.3(f)?

In Degen v. Bonita Unified School District (ADJ7271474), a panel of commissioners addressed defendant’s reconsideration of the Findings and Orders in which the workers’ compensation judge (WCJ) found that good cause existed to strike any existing reports of the orthopedic PQME, Dr. Javaraja Yogaratnam. Pursuant to these findings, the WCJ ordered that all prior reports of Dr. Yogaratnam prepared in the case were stricken.

In its petition for reconsideration, defendant contended essentially that a “six second voicemail left for the examiner should not be considered a communication,” and that the WCJ erred in presuming that the PQME did not intend a “trivial communication” when the communication in question only related to the PQME’s deposition fee demand.

In granting removal on its own motion, and in rescinding the WCJ’s findings, the panel of commissioners noted:

“In this case, the WCJ states in his Report that the “facts are not significantly in dispute” including the fact that the November 5, 2010 voice mail message from Dr. Yogaratnam to defendant’s claims adjuster requested the adjuster’s return telephone call and left no other information. We further note that defendant informed applicant’s attorney immediately following the doctor’s voice mail message, and that applicant’s attorney did not take any action until after receiving the doctor’s report, which as stated in the WCJ’s Report is apparently favorable to defendant. Under the circumstances, we conclude that the doctor’s voice mail message is so peripheral to the operative proceedings as to be insignificant. Therefore, based on the Court of Appeal’s discussion in Alvarez as referenced above, we conclude that there was no ex parte communication by Dr. Yogaratnam. We need not and do not address the doctor’s fee request in advance of his deposition, as the WCJ states in his Report that the issue “was not determinative of my decision.” We agree that the deposition issue is irrelevant to whether or not an ex parte communication occurred. Dr Yogaratnam shall remain as the PQME in this case, his report is not stricken based on the alleged ex parte communication, and the parties may take the doctor’s deposition as provided by law.” [Footnote omitted]

There are a couple of very interesting aspects to this panel decision. First, is the conclusion by the panel that a message to an adjuster, albeit only six seconds in duration, ostensibly pertaining to a fee request in advance of his deposition was “peripheral to the operative proceedings”. The panel is clearly not interested in looking behind the voicemail or what was possibly intended by the voicemail. It could very easily be argued, if the doctor was upset or wanted to question the amount he was going to be paid for the deposition, that it could impact not only his deposition testimony but the outcome of the case.

Second, the WCAB seems, going back to even prior to Alvarez, to focus on when the objection is lodged to the PQME’s report. As in Degen, if the objection is made after the report is issued, there appears to be a concern that the party is using the alleged violation as an excuse to “doctor shop”. This appears to an important consideration cited in many recent cases dealing with litigation surrounding the removal of the existing PQME.

In conclusion, in evaluating what communications will or will not constitute prohibited ex parte communications, it is worthwhile to look carefully at Labor Code Section 4062.3(f) and (g). One could argue that the termination of a PQME, after what could possibly be construed as a very innocent communication, after the QME has possibly seen the applicant several times is a harsh remedy. One could further argue that a charge of contempt and the liability for the costs incurred by the aggrieved party are also very harsh remedies. Consequently, even post-Alvarez, it appears safe to say that the commissioners are going to continue to look very closely at these ex parte communication issues.

© Copyright 2011 LexisNexis. All rights reserved. This article is reprinted from an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.