The Second Appellate District, in the case of Alvarez v. WCAB, issued a literal interpretation of Labor Code §4062.3 prohibiting ex parte communications with the panel QME.
In the Alvarez case, the PQME received hundreds of pages of records to review as part of his AOE/COE evaluation. Following his non-industrial determination, the PQME was deposed by the parties. The PQME could not recall specifically where in the records he had obtained the important facts supporting his opinion that the case was non-industrial. Following the deposition, the panel QME contacted the defense attorney’s directly and requested a copy of eight pages previously sent to him which were relevant to his determination. The conversation only focused on the administrative request of providing these missing pages to the PQME.
The defense attorney properly informed applicant’s attorney by letter that the PQME had contacted him for these additional records and that the additional copies were being forwarded to the PQME. Applicant’s attorney then filed a petition pursuant to Labor Code §4062.2 for a new PQME based upon the ex parte communication telephone call.
At the hearing, there was no testimony or allegation that the telephone call was used in any manner to influence the outcome of the PQME’s report. The phone call was focused on the administrative task of providing the PQME with records as requested. The WCJ found there had been no improper ex parte communication with the PQME. The WCJ found that ex parte communications are not improper where they involve only administrative or procedural matters and not the merits of the case.
Applicant appealed but the WCAB denied reconsideration. Applicant then appealed to the Second Appellate District Court who issued a decision based on a literal view of Labor Code §4062.3. The Court held “Section 4062.3 does not provide that some ex parte communications are permissible, as suggested by the WCJ and the WCAB. Moreover, the statute does not distinguish between ex parte communications which are initiated by a party or by the medical evaluator.”.
Referencing the California Code of Judicial Ethics, the Court compared this communication with communications in a judicial proceeding. A judge may communicate with a party in the absence of other parties about administrative matters, as long as the judge reasonably believes that the communication will not result in a procedural or tactical advantage for any party. However, the Court found no such exception for administrative matters existed in Labor Code §4062.3. They reasoned that evaluating physicians do not have the same background that judges do to draw the proper distinctions. The Court of Appeal granted the applicants request for a new panel, and awarded costs of the appeal to the applicant attorney.
Under this law, it is imperative that the parties never initiate call to a PQME for any reason other than scheduling. Even more, do not take calls from the PQME. Only a Labor Code §4062.3 letter copied to the opposing party may be sent at any time after the appointment has been scheduled. Any communication with the PQME must be by deposition or by Labor Code §4062.3 correspondence letters. Any communication deemed not pursuant to Labor Code §4062.3 can be grounds to strike the PQME and seek a new panel.