Many cases over the year have attempted to define Ex Parte communications with a medical legal examiner and the remedies following such communications. A recent En Banc decision in Suon v. California Dairies 83 CCC 1803 attempts to clarify some of the concerns. While not addressing all issues that may arise, the case does allow for some direction in how to resolve certain disputes under these code sections.
The WCAB held (1) “Parties must communicate with the QME in writing and are prohibited from Ex Parte communication with the QME.” In this sense, “Written communication with the QME that is properly served on the opposing party is not Ex Parte.”
Relevant to the discussion, Labor Code Section 4062.3 states:
a. Any party may provide to a Qualified Medical evaluator selected from a panel any of the following information:
(1) Records prepared or maintained by the employee’s primary treating physician or physicians. (2) Medical or non-medical records relevant to the determination of the medical issue.
b. Information that a party proposed to provide the qualified medical evaluator selected from a panel 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 non-medical records within 10 days thereafter, the records shall not be provided to the evaluator. Ether party may use discovery to establish the accuracy or authenticity of nonmedical records prior to the evaluation….
e. All communications with a qualified medical evaluator selected from a panel before a medical legal evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to medical evaluator….
g. Ex Parte communication with an agreed medical evaluator or a qualified medical evaluator selected form a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to labor code section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation.
Essentially, the WCAB has confirmed that as long as the communication is provided in writing to the opposing party it does not constitute an Ex Parte communication. A violation of some other standard within Labor Code §4062.3 may have occurred, but the remedy outlined in LC §4062.3(g) for an “Ex Parte” violation would not be appropriate.
In Suon, applicant was evaluated by internal medical physician Robert Weber, M.D. who determined applicant’s coronary artery disease and myocardio infarction would not be considered industrial absent any history of experiencing frequent and chronic emotional stress. During deposition, Dr. Weber confirmed review of the psychiatric evaluation report could impact his analysis and opinion. Subsequent to the evaluation, the report of psychiatric QME Rubindra Paul, M.D. was forwarded by defendant to Dr. Weber. The letter to Dr. Weber indicated it was copied to applicant’s counsel, but no proof of service was presented. Applicant’s counsel indicated it was not received in his office. No other evidence was provided to the WCJ.
The WCAB indicated that the record would have to be developed as to whether the communication was actually served on applicant’s counsel, but if sent, (letters addressed are presumed to be sent, but rebuttable) it would not be considered an Ex Parte violation under LC §4062.3(g).
Still, the WCAB would have to consider another prong of LC §4062.3 “Under Section 4062.3, Information that a party proposes to provide the QME must be served on the opposing party 20 days before it is provided to the QME.”
The WCAB described the differences between information and communication as outlined in the Maxham case (82 CCC 136). Information as used in Labor Code §4062.3 constitutes (1) records maintained or prepared by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to the determination of the medical issues. A communication can constitute information if it contains, references or encloses (1) records maintained or prepared by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to the determination of the medical issues.
After the initial examination, a communication can be sent to the medical legal examiner seeking supplemental opinions at the same time as being copied to the opposing counsel, but if that communication contains ‘information’ (i.e. medical reports or references thereto), it would need to be submitted to the opposing party at least 20 days in advance of being provided to the medical evaluator pursuant to LC§4062.3(b). Most supplemental report requests will include additional medical reports and/or information that is required to be sent to the opposing party at least 20 days in advance of it being submitted to the evaluator.
The WCAB also considered the differences between medical and nonmedical records to be submitted. Labor Code §4062.3 only comments on an objection to nonmedical records being submitted. It is silent as to any objection to medical records provided. Therefore, the court held that any objection to medical records must be timely to preserve the objection and the failure to object at the first opportunity may be construed as an implicit agreement for the information to be provided the QME.
The WCAB concluded that the parties need to make a good faith effort to resolve the disputes as to information being provided and whether the parties engaged in good faith efforts may be considered by the trier of fact in addressing the dispute. Ultimately, “the trier of fact has the authority to address disputes regarding what information is to be provided to the QME.”
The WCAB also observed that “Section 4062.3 provides a specific remedy for Ex Parte communications with a QME, but not for a violation of Section 4062.3(b).” Where there is an Ex Parte communication, the aggrieved party can elect to terminate the evaluation and seek recourse (a new panel or evaluator). As indicated previously though the request must be made within a reasonable time. The same is not true if the violation is due to Labor Code §4062.3(b). The court is allowed wide discretion is fashioning a remedy to a Labor Code §4062.3(b) violation. Factors the trier of fact may consider include: (1) The prejudicial impact versus the probative weight of the information; (2) The reasonableness, authenticity, and as appropriate, relevance of the information to determination of the medical issues; (3) 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; (4) Case specific factual reasons that justify replacing or keeping the current QME, including the length of time the QME has been on the case; (5) Whether there were good faith efforts by the parties to agree on the information to be provided the QME; and (6) The constitutional mandate to “accomplish substantial justice in all cases expeditiously inexpensively and without encumbrance of any character.”
The Soun matter was removed back to the trial court to determine whether there was an Ex Parte communication (to obtain additional evidence on the submission of the communication to applicant’s attorney from defendant) and then to allow the court to fashion a remedy for the perceived violation of Labor Code §4062.3(b) (defendant’s failure to provide information to applicant’s attorney more than 20 days prior to submission to the evaluator). This result may be a replacement panel in internal medicine or any other remedy the court deems reasonable pursuant to the factors outlined.
To avoid this type of dispute, it is recommended to timely serve all ‘information’ timely on the opposing party in advance of any request for report and to communicate with the opposing party should it be prevalent to send ‘information’ timelier than the 20 days required by code. Regardless, all communications with the medical legal evaluator should be served on the opposing party to avoid an Ex Parte result.