In the en banc decision of Suon v. California Dairies/Ins. Co. of the West/Hartford/Starr Indem. & Liab. Ins. Co., ADJ9013590, ADJ9014316, ADJ9489408 (FRE), Oct. 23, 2018, 83 CCC 1803, Decision After Removal (en banc), the Board addresses the following questions:
- Timeliness and content requirements for provision of “information” to QMEs;
- What constitutes ex parte “communication” with QMEs; and
- Consequences for §4062.3 violations.
Applicant, a machine operator, filed three claims of injury: a cumulative trauma (CT) injury to the heart and circulatory system through January 5, 2010 (ADJ9489408); a specific injury to the right shoulder, feet, legs, stress and sleep on February 28, 2012 (ADJ9013590); and a CT through June 27, 2013 to the right shoulder, neck, head, feet, legs, sleep, psyche and heart (ADJ9014316).
All three cases were consolidated and the 2013 cumulative claim was designated as the master file. Defendant (ICW) was also joined as a party defendant to the 2010 cumulative claim over its objection.
Dr. Robert Weber acted as the internal medicine QME and evaluated applicant on August 3, 2015. Dr. Weber’s report found as follows:
“Given his well-documented, multiple, major risk factors for coronary heart disease and absent any history that Mr. Suon provided with respect to potential contributing factors of a work-related nature, such as having experienced frequent and chronic emotional stress, it is my opinion based upon reasonable medical probability that causation of Mr. Suon’s coronary artery disease and small myocardial infarction of September 2009 was nonindustrial.”
Dr. Weber’s deposition was taken on February 10, 2016. During the deposition, Dr. Weber agreed to review a psychiatric QME report regarding stressful activities or events at work.
Dr. Rohindra Paul acted as the psychiatric QME for the 2012 specific claim. Applicant was evaluated on January 26, 2016 and February 24, 2016. Dr. Paul issued report dated March 16, 2016. On April 19, 2016, Defendant (The Hartford), sent a letter to the internal QME Dr. Weber enclosing a copy of Dr. Paul’s March 16, 2016 report. The letter stated, in pertinent part:
In your recent deposition, you requested the opportunity to review applicant’s psych QME reporting in order to finalize your opinion as to causation. Enclosed, please find the March 16, 2016 report of Psychiatric Qualified Medical Examiner Dr. Robindra Paul.
Please review Dr. Paul’s report and issue a supplemental report as to how your opinion may have changed, if at all.
The correspondence listed applicant’s attorney as one of the copied parties, but only stated his name without his address and without proof of service.
On April 20, 2016, the WCJ ordered an additional QME panel in psychiatry for the 2010 cumulative claim. Defendant (ICW) petitioned for removal of the order for additional panel. The WCJ issued order vacating the order for additional panel and indicated that the matter would be set for Status Conference.
On August 31, 2016, Dr. Weber issued report reflecting receipt and review of Dr. Paul’s March 16, 2016 report. Dr. Weber’s opinion regarding causation remained “as expressed” in his previous report.
Applicant’s attorney sent two letters (September 20, 2016 and October 4, 2016) to Defendant (The Hartford) indicating that he was not provided with a copy of supplemental report request to Dr. Weber. The matter was set for trial on January 4, 2018 on the issues of:
- Paul’s status as psychiatric QME versus additional psychiatric QME that had been ordered and then vacated in the 2010 cumulative case; and
- Whether Dr. Weber “has been tainted based upon the provision of Dr. Paul’s reporting to him during a period of time that this issue was being disputed … sufficient to entitle the applicant to a new internal medicine panel.”
On March 8, 2018, the WCJ issued the Findings that (1) Dr. Paul is to address any disputed issues in the 2010 cumulative case, (2) Defendant (The Hartford) violated §4062.3(b) by providing Dr. Weber with medical information without first informing applicant, and (3) Defendant (The Hartford) had ex parte communication with Dr. Weber. The parties were ordered to return to Dr. Paul for any new issues related stress and/or psychiatric injury that may arise in relation to the 2010 cumulative claim, and obtain a new QME panel in internal medicine or select an AME. The reports and deposition transcript of Dr. Weber are not to be provided to the new internal PQME or AME.
Timeliness and Content Requirements
Section 4062.3(b) requires that “information” proposed to be provided to the QME “shall be served on the opposing party 20 days before the information is provided to the evaluator. If the opposing party objects to consideration of nonmedical records within 10 days thereafter, the records shall not be provided to the evaluator.” Although §4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve that objection. The failure to object at the first opportunity may be construed as an implicit agreement by the opposing party to provision of the information to the QME.
Section 4062.3(e) separately requires that “communications with a [QME] before a medical evaluation” must be served on the opposing party “20 days in advance of the evaluation.” However, §4062.3(e) further provides that any subsequent communication with the medical evaluator … shall be served on the opposing party when sent to the medical evaluator.”
Ex Parte Communication
Written communication with the QME that is properly served to the opposing party is not Ex Parte communication. Whether a party properly served a written communication with the QME to the opposing party is a question of fact the determination of which must be supported by substantial evidence. Here, the evidence of record is unclear as to whether Defendant (The Hartford) letter to Dr. Weber was properly served and received by applicant’s attorney. Therefore, the matter was returned to the WO to further address that issue.
“Information” vs. “Communication”
If a communication was not ex parte, the trier of fact must decide whether the documents or materials sent to the QME constitute “information” or “communication”.
In Maxham, the Appeals Board distinguished between “information” and “communication” under §4062.3 as follows:
‘Information,’ as that term is used in section 4062.3, constitutes (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues.
A ‘communication,’ as that term is used in section 4062.3, can constitute ‘information’ if it contains, references, or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues.
(Maxham, supra, 82 Cal.Comp.Cases at p. 138.)
Consequences for §4062.3 Violations
If a party engages in ex parte communication with the QME in violation of §4062.3(e), subsection (g) expressly provides that “the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator… or proceed with the initial evaluation” (emphasis added). Therefore, the remedy of a new QME does not occur automatically. If the aggrieved party wishes to elect to terminate the evaluation due to an ex parte communication, the aggrieved party must exercise its right to seek a new evaluation within a reasonable time following discovery of the prohibited communication. Conduct by the aggrieved party that is inconsistent with an election to terminate the evaluation may be construed as forgoing its right to terminate the evaluation and seek a new QME. Inaction by the aggrieved party following discovery of the ex parte communication is in effect an election to proceed with the QME.
The Labor Code does not provide a specific remedy for a violation of §4062.3(b). Here, the Board found the trier of fact had wide discretion in fashioning an appropriate remedy for a violation of §4062.3(b). In determining the appropriate remedy for a party’s violation of §4062.3(b), factors the trier of fact may consider include, but are not limited to, the following, as relevant:
- The prejudicial impact versus the probative weight of the information.
- The reasonableness, authenticity and, as appropriate, relevance of the information to determination of the medical issues.
- The timeline of events including: evidence of proper service of the information on the opposing party, attempts, if any, by the offending party to cure the violation, any disputes regarding receipt by the opposing party and when the opposing party objected to the violation.
- Case specific factual reasons that justify replacing or keeping the current QME, including the length of time the QME has been on the case.
- Whether there were good faith efforts by the parties to agree on the information to be provided to the QME.
- The constitutional mandate to “accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., art. XIV, § 4.)
Following consideration of all relevant factors, the trier of fact may determine the appropriate remedy for a violation of §4062.3(b). Although the trier of fact may conclude that the appropriate remedy is a new QME, the trier of fact may conclude that other relief besides a new QME, or in addition to a new QME, is more appropriate for a party’s violation of §4062.3(b) depending on the circumstances.
- Although §4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.
- If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.
- The trier of fact has wide discretion to determine the appropriate remedy for a violation of §4062.3(b)
Written by Suzanna Thach, Associate Attorney in our San Francisco Office, January 2019.