California: The Element of Surprise as an Ex Parte Communication

California: The Element of Surprise as an Ex Parte Communication

Attorneys cannot surprise the other side and show “information” (films or vocational reports) to the AME at cross-examination as it is an ex-parte communication in violation of Labor Code section 4062.3 because the parties must agree on what “information” is to be provided to an AME.

 By Mark L. Kahn (Associate Chief Judge-Ret.), Arbitrator/Mediator/Attorney - Altman Lunche and Blitstein

In the case of Trapero v. North American Pneumatics, 2012 Cal. Wrk. Comp. P.D. LEXIS 541 (lexis.com), 2012 Cal. Wrk. Comp. P.D. LEXIS 541 (Lexis Advance), the WCAB came to this exact conclusion.

The applicant’s attorney handed a recently-procured vocational evaluation report to defense counsel a few minutes prior to AME’s deposition and presented the report to AME during deposition. The defendants objected to the report being presented to the AME at the deposition. The defendants moved for a new AME based on the ex-parte communication. The WCJ denied the motion. The WCAB granted removal on its own motion and rescinded WCJ’s finding. The WCAB held that the applicant’s attorney violated Labor Code § 4062.3 [4062.3] because (1) the vocational reports fell within the definition of “information” described in Labor Code § 4062.3, as it was a “nonmedical record relevant to determination of a medical issue” under Labor Code § 4062.3(a)(2), (2) under Labor Code § 4062.3(c), the parties must agree on what information is provided to the AME and by springing the vocational report on defense counsel when the AME was about to be deposed deprived defense counsel of opportunity to determine if he would agree to provide this information to the AME, and (3) the vocational report should not have been provided to the AME during the deposition, because defense counsel objected to provision of this “information”. The WCAB granted defendants’ motion for a new AME based on the ex-parte communication.

COMMENTARY: This case stands for the proposition that you cannot spring “information” on opposing counsel at the AME deposition and show the information to the AME. You must serve the “information” on the other side in advance so as to give the other side the opportunity to review the material and to decide if they will agree on whether the information can be presented to the AME at the deposition. The case held that showing the information to opposing counsel at the deposition for the first time deprived counsel of opportunity to determine if they would agree to provide the information to AME. The other side, after receiving the ‘information” in advance of the deposition, must also agree to show the “information” to the AME or you cannot present the information to the AME at the deposition.

PRACTICE TIP: To present information to an AME at a deposition you have to do the following:

1. You need to notify the other party prior to the deposition of the information you wish to present to the AME and give them sufficient time to review the information and decide whether they want to agree the information can be presented to the AME.

2. You need to reach an agreement with other side to present the information to the AME prior to showing the “information” to the AME at the deposition.

3. If you cannot get the other side to agree, you will have to file a petition with the WCAB.

COMMENTARY: Information would include films as well as the vocational report that was the subject of this case. The definition of “information” is defined very broadly and is described in Labor Code § 4062.3 “as non-medical record relevant to determination of a medical issue” under Labor Code § 4062.3(a)(2). As can be seen from this very broad definition, films would be included within the definition of “information”.

PRACTICE TIP: It should be noted that defense counsel objected at the deposition to presenting the “information” to the AME. Failure to object at the deposition may have acted as a waiver and may have changed the result of this case.

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