EK HEALTH

Here is an all-too-common situation which can become very costly:

As either an attorney, or a claims examiner, what would you do if a Panel QME or an AME called to let you know that he/she was missing some reports that they needed for their evaluation and asked you to send them to him/her?

More likely than not, a fairly significant percentage of you would say: Get the PQME or AME what she/he needs.

In a published case, Alvarez v WCAB, decided on May 14, 2010, the Second District Court of Appeal held that Labor Code §4062.3 expressly and completely prohibits ex parte communication with a PQME (and an AME) with the only exception being for communications by the employee or the deceased employee’s dependent in connection with an examination. They re-stated the laws that in the event of unauthorized ex parte communication, the aggrieved party is permitted to obtain a new evaluation from another PQME.

So what happened here?

An employee died from intracerebellar hemorrhage and hypertension in 2005. Her widower filed a claim for death benefits. A PQME was selected and he reviewed over 600 pages of medical records and documents. There was a dispute as to whether the death arose in the course and scope of employment.

The PQME was deposed on December 4, 2008. The doctor testified that he was relying on an investigative report of some kind. He could not specify exactly testify as to which record he had relied upon. He indicated that after the deposition he would go through all of the records in his possession and supplement his answers with specification of the report.

The next day the doctor contacted the defense attorney only and indicated that he could not locate the record. The conversation according to the defense counsel lasted for less than a minute.

Later that day, the defense lawyer wrote to the applicant's attorney identifying the telephone call that had been made by the doctor and informing the other attorney that another set of records had to be sent to the PQME as the original set had probably been shredded.

Immediately upon receipt of the letter, the applicant's attorney wrote back that the defense counsel had violated the Labor Code by having an ex parte communication with the PQME. A Petition objecting to the ex parte communication was filed requesting that a new Panel QME be appointed.

At trial the Workers’ Compensation Judge (WCJ) issued “Findings and Order that there was no improper ex parte communication between defense counsel and the PQME in violation of the Labor Code.”

Reconsideration was filed and the Commissioners denied it agreeing with the WCJ that the ex parte communication was initiated by the doctor and merely concerned an administrative matter.

However the Court of Appeal had a different viewpoint in that “prejudice or lack thereof, is not a consideration. Although the violation might seem innocuous, there is no way for the WCAB to determine what exactly was said during the communication or the effect of communication." They continued, “that the panel qualified medical evaluator felt comfortable with communicating ex parte with counsel for one party about the former’s purported sources of information might also be disquieting to the other party. The subject of the records was a sensitive one." They ordered that the doctor’s report be stricken and a new Panel QME be selected.

The lesson of the case is a stern warning that any ex parte communication with a PQME or with an AME by either an attorney, claims examiner or in a limited way by an injured worker, is expressly prohibited by the Labor Code and in the opinion of these justices is to be strictly construed.

Thanks for your attention.