The 2nd District Court of Appeals has issued its 2nd decision in the Alvarez v W.C.A.B. case addressing the issue of ex parte communication with a QME/AME prohibited under Labor Code § 4062.3. In its initial decision which issued earlier this year, the appellate court had adopted a strict interpretation approach to the section, holding any ex parte contact was sufficient to trigger a finding of violation of that section and requiring issuance of a new QME panel. The court granted S.C.I.F.’s request for rehearing and has issued a new decision with much the same language but with a modified holding and a different disposition.
In its newly issued opinion the Court softens its strict interpretations approach to the section. While still noting the mandatory language of the code and commenting that any violation of the ex parte contact prohibition qualifies as a statutory violation, it also comments on the “informality” that is recognized as customary in workers’ comp proceedings:
“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 [“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 [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 Court appears to have been swayed by some of the arguments by S.C.I.F. that not every contact was one which would violate the statutory provisions. The Court never the less maintained its holding reversing the distinction drawn by the W.C.A.B. and the WCJ regarding administrative vs substantive issues and also who initiates the contact. Instead the court substitutes a requirement for the W.C.A.B. to consider the substance of any discussion as potentially being so insubstantial as to not run the risk of being relevant to the case.:
“We hold that section 4062.3 expressly prohibits ex parte communications with a panel qualified medical evaluator, with no exception based on the initiator of the communication or for “administrative” matters. Nevertheless, because a certain degree of informality in workers’ compensation procedures has been recognized, not every conceivable ex parte communication permits a party to obtain a new evaluation from another panel qualified medical evaluator. We remand the matter to the WCAB to reconsider the matter in view of our interpretation of the applicable statute.
The WCAB should reevaluate its conclusion based on the principles we have discussed and not based on any distinction between “administrative” and “substantive” nature of the communication or on who initiated the communication.“
This last sentence replaced the order for the W.C.A.B. to provide a new panel to the Applicant Attorney based upon a violation of the section and instead requires the W.C.A.B. to determine if the discussion with the QME was one of the kinds of ex parte communications that is not considered a violation of the statute. Interestingly the Applicant Attorney may have won the case but in the final analysis the W.C.A.B. could decide the contact in this case fits the criterion addressed by the Court that every ex parte contact does not result in a statutory violation.
The Court has replaced its “bright line” holding (any ex parte contact is a violation of statute) with a slightly milder interpretation that could be subjectively interpreted (any ex parte contact is a violation of the statues – probably) that may be difficult to navigate in a real world setting. This holding (along with the prior now superseded opinion) highlights the issue of ex parte contact as a prima fascia violation of Labor Code § 4062.3 to a level of concern for all practitioners in the industry.
The best course – don’t take that call without at least putting the doc on hold and conferencing in the other party before any discussion takes place. Better yet – communicate in writing (using a fax if speed is an issue) to avoid the potential ex parte contact. If you have to litigate this issue, it likely means someone has made a mistake in judgment.
© Copyright 2010 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.