Case BriefDiscoveryQME’s Ex Parte Communication with Applicant’s Attorney’s Office Results in Replacement QME Panel

July 16, 20180

(2018) 2018 Cal. Wrk. Comp. P.D. LEXIS 63

Applicant claimed injury to the psyche as a result of his work as a technician/splicer for Pacific Bell.  Defendant denied the claim.  The applicant was evaluated by a QME in psychiatry who found the injury was compensable.  Defendants then accepted the claim.

Following a re-evaluation of the applicant, the doctor issued a report in which he indicated that he had reviewed all of the records “including various email notifications by me to applicant’s attorney”.  The report did not indicate that these emails had been served on defendant.

Defendant took the doctor’s deposition.  The doctor testified that he had made an “emergency call” to applicant’s attorney’s office following the evaluation.  The purpose was to advise applicant’s attorney about the applicant’s “serious psychological condition”, including being suicidally depressed; suffering from depression and post-traumatic stress disorder; requiring hospitalization; and that he was “really incapacitated”.

Defendant then filed a Petition to Remove the QME and for an Order to obtain replacement QME Panel.

The issue was tried and the Workers’ Compensation Judge denied the defendant’s Petition.  The Workers’ Compensation Judge determined that the communication from the QME to applicant’s attorney were “administrative” and did not constitute good cause for a replacement Panel.

Defendant filed a Petition for Reconsideration which was granted.

The Commissioners reviewed Labor Code §4062.3 and Administrative Director Rule 35(k) regarding ex parte communication, as well as Alvarez (2010) 187 Cal. Ap. 4th 575, which discusses the issue of “substantive” communications and “administrative or procedural” communication.  The statute does not carve out exceptions whether the communication is administrative or procedural, rather than substantive.  Further, in this case, the contents of the communication involved the applicant’s diagnosis, as well as comments regarding impairment and applicant’s ability to return to work.  These were clearly substantive findings of the medical/legal evaluation.

Under the circumstances, Labor Code §4062.3(g) allows the aggrieved party to obtain a replacement QME Panel.

Written by Edward L. Hummer, Associate Attorney in our Santa Rosa office, June 2018.

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