ADJ16690008 — California WCAB decision

What the panel ordered

Findings and Order affirmed except amended to find no violation of Labor Code section 4062.3(g) due to insignificant ex parte communication and no adjudication of Labor Code section 4062.3(b) violation under Suon

Petition for Reconsideration granted; Decision After Reconsideration issued affirming Findings and Order except amended findings on ex parte communication and Labor Code section 4062.3(b) violation

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

QME/AME processDefendant prevailedleft arm · left wrist · five left fingers · bilateral shoulders · neck · psyche

The ex parte communication was found to be insignificant and inconsequential, procedural rather than substantive, and did not violate Labor Code section 4062.3(g).

From the decision · page 1Applicant seeks removal of the Findings and Order (F&O) issued on December 12, 2023, wherein the workers' compensation administrative law judge (WCJ) found that (1) while employed as a machine operator on April 25, 2023, applicant sustained injury arising out of and in the course of employment to his left arm, left wrist and five left fingers, and claims to have sustained injury arising out of and in the course of employment to his bilateral shoulders, neck and psyche; and (2) the communication of defendant's attorney to the PQME's office was insignificant and inconsequential.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant's attorney's ex parte communication to PQME's office was procedural and insignificant

Favours Defendant prevailed

Led to finding no violation of Labor Code section 4062.3(g)

From the decision · page 3The ex parte communication at issue here, between Defense Counsel and the PQME office, was intended to ensure that the 2 specific objected to records that were inadvertently sent to the PQME office for review by Defense Counsel's office, were not in fact reviewed by the PQME and instead removed by the PQME office staff before the document packet was provided to the PQME. That is what was requested. That is what took place. Parties stipulated that the doctor did not review or address either the job description or the denial letter as per Stipulation 14 of the September 12, 2023 Minutes of Hearing. This is an example of a communication that is "so insignificant and inconsequential that any resulting repercussion would be unreasonable." (Alvarez, supra, 187 Cal. App. 4th at p. 590.)... Although the communication between Defense Counsel and the PQME office was ex parte, this WCJ has determined that such communication was not substantive in nature and instead procedural. As such there is no need for any further analysis pursuant to Suon. The communication does not rise to the level of being a violation of Labor Code 4062.3 and a determination of same, under these specific set of facts, would instead "lead to absurd results. [citations omitted]" (Alvarez, supra, at p. 590.)

Objected-to nonmedical records were removed before PQME review

Favours Defendant prevailed

Resolved alleged Labor Code section 4062.3(b) violation and no aggrievement shown

From the decision · page 6But the record shows that, notwithstanding that defendant's attorney improperly provided nonmedical records to which applicant's attorney had objected to the PQME's office, defendant's attorney shortly thereafter secured the removal of the objected-to nonmedical records from the materials to be reviewed by the PQME. (Report, pp. 4-5.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code section 4062.3(a)-(b),(e)-(g)

Governs communications with PQME and ex parte communications

From the decision · page 4Labor Code section 4062.3 provides, in pertinent part: (a) Any party may provide to the qualified medical evaluator selected from a panel any of the following information:

Martinsen (Lon) v. H&H Enterprises, Inc.

Martinsen (Lon) v. H&H Enterprises, Inc. (2023) 2023 Cal. Wrk. Comp. P.D. LEXIS 16

Defines insignificant and inconsequential ex parte communications

From the decision · page 2This WCJ opined that the communications between the defense counsel's office and the PQME's office was not substantive in nature and instead in fact procedural and therefore the remedy of replacing the PQME is unsupported. Applicant seeks Removal of the undersigned's decision that Applicant is not entitled to a new QME citing that the PQME's "opportunity to review objected to nonmedical records... impedes Applicant's right to be evaluated by a doctor who is neutral and unbiased." (Emphasis added) (Applicant's Petition for Removal at 1:27-2:3, EAMS ID# 49761193.)... As set forth in the Opinion on Decision, this WCJ opined that the communications between the defense counsel's office and the PQME's office was not substantive in nature and instead procedural. Although not stated specifically within the Opinion on Decision, this WCJ concluded that there was ex parte communication between the Defense Counsel and the PQME office. This WCJ did, however, explicitly set forth that not all ex parte communication is impermissible; specifically, communications that occur in the course of a QME evaluation and those that are "so insignificant and inconsequential that any resulting repercussion would be unreasonable" as set forth in Martinsen (Lon) v. H&H Enterprises, Inc. (2023) 2023

Alvarez v. Workers' Comp. Appeals Bd.

Alvarez v. Workers' Comp. Appeals Bd. (2010) 187 Cal. App. 4th 575

Supports finding that insignificant ex parte communication does not violate Labor Code section 4062.3

From the decision · page 3Cal. Wrk. Comp. P.D. LEXIS 16 and Alvarez v. Workers' Comp. Appeals Bd. (2010) 187 Cal. App. 4th 575.

Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803 (en banc)

Establishes remedy framework for Labor Code section 4062.3(b) violations

From the decision · page 6In Suon, we held that (1) alleged violations of Labor Code section 4062.3(b), which prohibits materials to which a party has objected from being provided to the PQME absent court leave, must be adjudicated by the WCJ unless the parties informally resolve their dispute; (2) a party aggrieved by a violation of Labor Code section 4062.3(b) may elect to terminate the PQME evaluation and seek a new evaluation following discovery of an impermissible ex parte communication; and (3) the WCJ has wide discretion, and may consider a range of factors, to determine what if any remedy is appropriate for a Labor Code section 4062.3(b) violation.

ADJ16690008 · March 4, 2024

What the panel ordered

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