California: Ex Parte Communications: When Replacement Panel Not Warranted

A recent noteworthy panel decision, Turner v. PT Gaming, addresses three interrelated issues on QME reporting and service of reports and whether they provide grounds for a new PQME. The majority, in this split opinion, concludes per Alvarez v. WCAB, 187 Cal. App. 4th 575, 75 Cal. Comp. Cases 817, that an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable. As such, the panel decision is instructive.

In Turner, the majority of the WCAB, denying removal, affirmed the WCJ’s finding that the applicant was not entitled to a replacement PQME in internal medicine/cardiology, notwithstanding the applicant’s assertions that the current PQME engaged in improper ex parte communication with the defendant by serving medical reports on the defendant but not on the applicant, and that the defendant improperly induced the ex parte communication by sending an advocacy letter to the PQME prior to the doctor’s evaluation of the applicant which requested service of his medical reports on defense counsel and the claims adjuster, but didn’t request service on the applicant.

The WCAB panel majority reasoned that the applicant played a role in the alleged “inducement” by failing to object after being served by the defendant with the proposed advocacy letter and by failing to serve an advocacy letter of his own. Although the doctor believed he was acting as a defense qualified medical evaluator after receiving the advocacy letter from the defendant, there was no evidence that he acted impartially in his evaluation. The WCAB panel majority was not persuaded that the service of reports on the defendant and not on the applicant was “substantive” such that a replacement panel was warranted under Labor Code § 4062.3(g) and 8 Cal. Code Reg. § 35(k), noting that previous WCAB panels have held that an inadvertent failure to serve all parties may be so inconsequential that ordering a replacement panel is unjustified.

Commissioner Sweeney, dissenting, believed that a replacement panel was justified based on the defendant’s practice of asking medical evaluators to serve its firm and client but not mentioning the injured employee’s counsel, and on the defendant’s failure to serve the applicant with the doctor’s reports despite its duty to serve the applicant with medical-legal reports in its possession, and also due to the doctor’s erroneous belief that he was acting as a defense qualified medical evaluator, resulting in the failure to serve the applicant with reports and potentially creating an appearance of impartiality.

Read the Turner noteworthy panel decision.

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