Turner v. PT Gaming, LLC (BPD) (2018 Cal. Wrk. Comp. P.D. LEXIS ):
The WCJ determined that applicant had no right to a replacement panel of Qualified Medical Evaluators in internal medicine/cardiology.
Applicant filed a petition for removal.
Applicant filed an application for a continuous trauma injury to various parts of his body while employed as a gaming associate for PT Gaming.
Defendants filed an answer denying injury arising out of and occurring in the course of employment.
The parties obtained a panel of Qualified Medical Evaluators in internal medicine and Paul Grodan M.D. was chosen to evaluate the applicant as QME.
Defendant served applicant with its proposed advocacy letter on September 12, 2016. Defendant’s letter requested that the physician serve the report on defense counsel and the claims adjuster, but did not request that the service also be made on applicant or his attorney.
Applicant did not object to defendant’s letter or send his own advocacy letter.
The physician issued two reports regarding the applicant. The first report was served on defendant and its attorney only. The second report was served only on defendant and its attorney.
Applicant scheduled the cross-examination of the Qualified Medical Evaluator by deposition. The deposition was set on two occasions but did not proceed.
Applicant then filed a Declaration of Readiness to Proceed to disqualify the Qualified Medical Evaluator on the grounds of ex parte communication and failure to serve the report within 30 days.
The applicant also filed a complaint against the physician with the DWC Medical Unit.
The physician submitted a reply to the complaint where he stated that his office assumed it was a unilateral defense QME appointment. The physician also indicated he has been performing medical legal evaluations for a very long time and is quite familiar with the legal issues and responsibilities of a QME.
The applicant’s attorney filed a petition to disqualify the physician and for a replacement panel on September 1, 2017.
The matter proceeded to trial and the WCJ denied the request.
Applicant filed a petition for removal.
The Appeals Board indicated that Labor Code §4062.3 (g) provides that ex parte communication with an agreed evaluator or qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator qualified medical evaluator in violation of subdivision (e), the grief party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator.
Administrative Dir. Rule 35 (k) provides that the Appeals Board shall retain jurisdiction in all cases to determine disputes arising from objections and whether ex parte contact in violation of Labor Code 4062.3 or the code of regulations has occurred. If any party communicates with an evaluator in violation of labor code 4062.3, the medical director shall provide the agreed party with the new panel in which to select and use QME for the agree party may elect to proceed with the original evaluation.
The Appeals Board indicated that per the case of Alvarez v. WCAB (75 CCC 817) Labor Code §4062.3 (g) prohibits ex parte communication with a QME whether the communications are substantive, procedural or administrative. However, in this case the court further found that an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.
The applicant’s attorney argued that the issue is whether defendant induced the QME to have ex parte communication mandates a disqualification.
The Appeals Board firstly stated they were not persuaded that the communication at issue here, merely the service of his report on defendant and not applicant, substantiates that a replacement panel is warranted. As cited by defendant, previous panels have held that an inadvertent failure to serve all parties may be so inconsequential that ordering a new replacement panel is unjustified. (Leiner, 2010 Ca. Wk. Comp. P.D. LEXIS 423)
Applicant also ignores the role he played in this alleged inducement to ex parte communication with defendant. Defendant provided applicant with its proposed advocacy letter to the QME on September 12, 2016. There is no evidence in the record that applicant objected to defendant’s letter or found it misleading regarding whether applicant was represented.
Previous panels have held that a party may not wait until after an adverse report issues to raise irregularities and most do so at the earliest opportunity. (Lopez, 2013 Ca. Wk. Comp. P.D. LEXIS 562 citing Fajardo 72 CCC 1158).
The record reflects that the applicant did not raise an issue with the QME’s report until April 2017, approximately six months after the physician’s initial evaluation. Moreover, applicant failed to send his own advocacy letter to the QME, which would have made it clear to the physician the fact the applicant was represented.
Applicant further contends that the physician admitted he was not impartial. The Appeals Board indicated this misstates the record. The physician concedes that his office assumed it was unilateral defense QME appointment. Nowhere in the letter does the physician state or imply that his incorrect belief affected his evaluations or conclusions regarding the applicant. Instead, the physician explicitly says that he has been performing medical-legal evaluations for a very long time and is quite familiar with the legal issues and the responsibilities and requirements by panel QME’s. There is no evidence in the record the physician did not act impartially despite his incorrect belief regarding his role in the matter.
In the alternative, the applicant argues that he is entitled to a new panel because the report was not served within 30 days and therefore replacement panel is required pursuant to Labor Code §4062.5 and Rule 38, which provides a party may obtain a replacement panel if the QME fails to issue a formal medical evaluation within the required time frame. The Appeals Board stated it is well-established that a party cannot wait until after receipt of the report to object to its timeliness under §§4062.5 and 38. The policy prevents parties from first reviewing a report to determine if it is favorable before submitting an objection to his untimely report. Applicant failed to object in a timely manner.
The appeals Board indicated that applicant failed to show that substantial prejudice or irreparable harm will result if removal is not granted. The WCJ’s decision to deny his petition disqualify does not prevent the applicant from challenging the conclusions of the physician in further proceedings and with further discovery. Applicant may specifically question the physician regarding whether his evaluation opinions were colored by his mistaken belief that he was acting as a defense QME.
Moreover, the applicant is failed to show that reconsideration of the final decision adverse to him would not provide an adequate remedy.
The petition for removal denied.
The descending Commissioner indicated that removal should have been granted and a replacement panel should have been appointed.
Yarbrough v. Southern Glazer’s Wine and Spirits (BPD) (83 CCC 425)
The parties agreed to use an Agreed Medical Evaluator.
An evaluation was scheduled but the applicant did not attend.
Defendant filed a petition to compel applicant to attend a rescheduled evaluation.
The WCJ granted the petition to compel.
Applicant objected to the order compelling, filed a DOR for a hearing and a request to withdraw from the AME agreement.
Applicant did not attend the rescheduled evaluation.
The Workers Compensation Judge ordered the applicant to attend an Agreed Medical Evaluation.
The applicant filed a Petition for Removal.
The WCAB granted removal and rescinded the WCJ’s order.
The Appeals Board held that Labor Code §4067 holds that once an AME has conducted a formal medical evaluation, the same AME shall be used in subsequent evaluations. However, as applicant points out, the applicant had not yet attended the formal medical evaluation with the Agreed Medical Evaluator, and so that physician need not be used for future evaluations. Labor Code §4067 does not apply in this case.
The Appeals Board further disagreed with the WCJ’s reliance on §4062.2 (f). This section provides that the parties may agree to an AME at any time, and that a panel shall not be requested pursuant to subdivision (b) on any issue that has been agreed to be submitted to or has been submitted to an agreed Medical Evaluator and less the agreement has been canceled by mutual written consent.
The WCAB stated that by its plain language, §4062.2 (f) deals with withdrawal from an AME after submitting to an AME evaluation. Nothing in this section precludes a party from withdrawing from an AME before submitting to an AME evaluation
The WCAB noted however that the WCJ may order the applicant to be evaluated by a regular physician or by a panel Qualified Medical Evaluator (Labor Code § § 5701 and 4062 and 4062.2).
The WCAB granted the petition and rescinded the minute order.
Reyes v. His Life Woodworks (BPD) (2017 Cal Wrk. Comp. P.D. LEXIS 512:
The WCAB held that pursuant to the case of the Bahena v. Charles Vizi Construction (214 Cal. Wrk. Comp. P. D. LEXIS 638) a QME panel may be requested under Labor Code §4060 based on a denial letter consistent with the Legislative goal of streamlining the QME panel process.
However, because Labor Code §4062.2 (b) requires the parties to wait at least 10 days before requesting a panel, the applicants request was premature when the applicant made the request seven days after defendant issued denial letter.
Pineda v. Mission Foods (BPD) (207 Cal. Wrk. Comp. P.D. LEXIS 572)
The applicant filed a Petition and a request for hearing on the issue a replacement panel because the Qualified Medical Evaluator could not schedule the deposition within 120 days as required by rule 35.5 (f).
The WCJ denied the request. A petition for removal was filed. The WCAB denied removal and stated that rule 35.5 does not specifically require replacement panel in the event that evaluators do not make themselves available for a deposition within120 days.
The WCAB held it was an abuse of discretion for the WCJ to deny the replacement panel.
Amedee v. Pacific Bell (BPD) (46 CWCR 57):
Claim of psychiatric injury on May 1, 2012. Defendant initially denied the claim, but accepted the claim based on receipt of a psychiatric report from a panel Qualified Medical Evaluator.
On October 16, 2013, the panel Qualified Medical Evaluator in psychiatry, made an emergency call to applicant’s attorney’s office to express concern about applicant state of mind, although not to the point of recommending or requiring a “5150 hold”.
Because the attorney was then attending a deposition the panel Qualified Medical Evaluator spoke with her assistant to urge the attorney to suggest “with vigor” that applicant needed to go voluntarily to a hospital.
The assistant did a “note report” that indicated client is suicidally depressed; client has bad depression; client has posttraumatic stress disorder; Dr. will not hospitalize client involuntarily; client has no medical coverage, recommends Obama care; “probably a slamdunk for SS disability”; Dr. suggests applicant’s attorney call client; Dr. suggests applicant’s attorney speak to wife; client is really incapacitated, cries at home in a dark room and a hallucinate; Dr. will expedite report and they should be receiving it shortly after he comes back from vacation October 28.
The next day, the Qualified Medical Evaluator followed up with an email to the attorney advising of applicant’s need for immediate attention and sent an expedited report.
Applicant’s attorney sent the email and report to defense counsel on October 18, 2013.
The panel Qualified Medical Evaluator re-evaluated the applicant on January 26, 2015, and issued a report, indicating that he reviewed all medical records including previous email notifications he had sent to the applicant’s attorney. The record did not indicate whether those notifications had been served on defendant.
The parties depose the PQME on September 5, 2015 and on May 23, 2016.
It was during the September deposition that defendant became aware of the emergency call to applicant’s attorney’s office and of the QME’s October 17, 2013 email to the attorney advising that an urgent report was being completed because of applicant suicidal ideation the need for immediate attention.
Although it appeared that the email had been included with the report that was forwarded to defense counsel on October 18, 2013, neither apparently mentioned the call to the attorney’s office on October 16.
On becoming aware of the call and the email, defendant filed a petition to remove the panel Qualified Medical Evaluator and for gnome order to appoint a replacement panel in psychiatry.
At trial the parties stipulated the applicant sustained compensable psychiatric injury; that the QME had not spoken with applicant’s attorney on October 16, 2013; and that defendant was not aware of the election ex parte communication until the September 2, 2015 deposition.
The WCJ issued a decision that applicant sustained a psychiatric injury and ruled that the communication between the QME and applicant’s attorney’s assistant was administrative in nature and could not be considered good cause to disqualify the physician. The WCJ explained the PQME had not spoken with applicant’s attorney and the phone call was simply made to express an urgent need for more aggressive treatment for applicant’s condition. All that information about the need for immediate care was included in the report the evaluator sent less than a week later to both applicant’s attorney and defendant simultaneously.
The WCAB stated that Labor Code 4062.3 (g), provides in pertinent part that ex parte communication with an AME or a panel QME is prohibited. If a party communicates with an AME or PQME in violation of that labor code, the agree party may elect to terminate the medical evaluation and seek a replacement evaluator, as provided for by Labor Code 4062.1 or 4062.2.
The panel in stated that §4062.3 (f) provides that communications with an AME shall be in writing and served on the opposing party when sent to the AME. It further provides that oral or written communication with physician staff or, as applicable, with the AME, relative to non-substantial matters such as scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication in violation of this section unless the appeals Board has made a specific finding of an in -permissible ex parte communication.
Rule 35 (k) provides that the Appeals Board retain jurisdiction in all cases to determine disputes arising over objections, and over whether ex parte contact in violation of 4062.3 (g) has occurred. If it has, the grief party may either require the Medical CAC director to provide a new QME panel, or elect to proceed with the original evaluator.
In the case of Alvarez v. WCAB (Court of Appeal) (75 CCC 817) ex parte communication with a PQME does not carve out exceptions for communications that are administrative or procedural rather than substantive or on the merits. Further, the prohibition applies to whoever initiated the ex parte communication. To suggest that the communication initiated by the PQME is not an impermissible ex parte communication would excuse a party from the prescriptions of §4062.3 (g) and could allow the party to discuss the merits of the case with the evaluator solely because the evaluator initiated the contact. The panel recognize that the Alvarez court ruled that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussions would be unreasonable”, but concluded that such a demand in this exception did not apply in that case.
The WCAB after reviewing the phone notes reason that the call from the PQME was not insignificant or insubstantial. The call constituted more than a technical violation.
There need be no analysis of whether there is good cause for replacement panel, where there has been ex parte communication with a QME on a substantive issue. The Labor Code contains no requirement that the communication must have resulted in prejudice to the aggrieved party.
In this case, it makes no difference that there was no apparent taint on the opinions of the QME, nor that his intentions were anything but commendable in trying to aid the applicant.
Pursuant to QME rule 35 (k), the medical director shall provide the aggrieved party with the new QME panel if there is prohibited communication.
If the communication is not inconsequential, the WCJ has no discretion to refuse to order a replacement QME panel.
The communication in this case was substantive and therefore impermissible.
The WCAB then affirmed the finding of psychiatric injury but amended to the decision to reflect that the communication between the QME and the applicant’s attorneys was a prohibited ex parte communication and issued an order the parties may proceed with the selection of a new evaluator.