California: No Ex Parte Communication with AME by Family Member

Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.

CA - NOTEWORTHY PANEL DECISIONS

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William Arey, Applicant v. Magic Mountain, LLC, Hartford Accident and Indemnity Company, administered by Broadspire, Defendants

W.C.A.B. No. ADJ10266237—WCAB Panel: Commissioners Razo, Snellings, Deputy Commissioner Schmitz

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed May 16, 2023

Publication Status:  CAUTION:  This decision has not been designated as 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, as these decisions are subject to appeal. WCAB panel decisions are citeable 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp.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]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. 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.

Disposition: The Petition for Reconsideration is granted, and the December 29, 2022 Findings of Fact and Order is affirmed in part and amended in part.

Medical-Legal Procedure—Ex Parte Communications—WCAB, after granting reconsideration, affirmed WCJ’s finding that there was no ex parte communication between applicant and agreed medical examiner (AME) based on fact that applicant’s sister provided information regarding applicant’s medical history and symptoms at AME evaluation, when WCAB, relying on reasoning in Belling v. United Parcel Service, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 738 (Appeals Board noteworthy panel decision), and Trujillo v. TIC-The Industrial Company, 2019 Cal. Wrk. Comp. P.D. LEXIS 90 (Appeals Board noteworthy panel decision), found that family member conveying essential information to medical evaluator on behalf of injured employee under circumstances in which employee is unable to do so is considered to be communication by employee and does not constitute either ex parte or otherwise prohibited communication under Labor Code § 4062.3, that applicant’s 9/10/2015 industrial head/brain injury significantly compromised his ability to recall his medical history and, according to AME, assistance of applicant’s sister was essential to medical-legal evaluation, that reasoning in Belling and Trujillo supported WCJ’s determination that given applicant’s impairment, participation of applicant’s sister in AME’s evaluation was both necessary and permissible, and that to prohibit applicant from effectively conveying, through his sister, his symptoms and medical history as part of medical-legal evaluation would risk “absurd results,” which Court of Appeal has cautioned against; WCAB further observed that defendant misapplied doctrine of collateral estoppel in asserting that propriety of communication between applicant’s sister and medical-legal evaluator was previously litigated and resolved in defendant’s favor, because issue was never tried or decided on its merits but rather was subject of off-record discussion between WCJ and parties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d § 22.11[18]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 15, § 15.03[4][e].]