What the panel ordered
The Appeals Board rescinds the FA&O and issues a new decision finding no basis to replace Dr. Madrid as the panel QME, denies defendant's Petition to Disqualify and Replace Dr. Madrid, and reopens discovery on all issues.
Applicant seeks reconsideration of the Findings, Award and Orders issued by the WCJ on June 2, 2022, challenging the order striking the psychological QME's reporting and replacement of the QME.
This docket was decided more than once. Shown here is the latest released decision; we also hold April 22, 2022.
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.
The WCJ acted within discretion to reopen discovery to ensure substantial evidence and due process, which the Appeals Board upheld.
From the decision · page 11The WCJ acted within his discretion to reopen discovery on all issues and further discovery may be warranted in order to ensure there is substantial evidence in the record to address the issues still in dispute. We will thus retain the order reopening discovery in the new decision.
The Appeals Board found the communication was insignificant and inconsequential, not warranting replacement of Dr. Madrid as the QME, reversing the WCJ's prior order.
From the decision · page 134. The psychological QME Dr. Antonio Madrid did not engage in ex parte communication with applicant in violation of section 4062.3 or violate AD Rule 41.5, and there is no basis for a replacement psychological panel.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The communication on September 23, 2016 was a simple request for clarification on whether and when Dr. Madrid should review surveillance videos and issue a supplemental report.
Favours Applicant prevailed
This showed the communication was reasonable and not a nefarious ex parte contact, supporting the decision not to replace Dr. Madrid.
From the decision · page 10Despite defendant's sustained efforts to depict improper communication between the QME and applicant's attorney, the record reflects that the September 23, 2016 communication was a simple request for clarification on when and whether Dr. Madrid should review the surveillance videos and issue a supplemental report. This communication was two days after applicant filed his Petition Preserving Qualified Medical Evaluator Status and DOR in response to defendant's replacement panel requests for both QMEs. The note memorializing the QME's conversation with applicant's attorney's assistant expressly acknowledged receipt of applicant's pleadings and requested to "know when and how to proceed." This note indicates Dr. Madrid logically understood his continued involvement in the case was uncertain at that time since defendant was attempting to replace him as the QME. This is a reasonable request for clarification on whether and when to review the videos and issue a supplemental report rather than a nefarious attempt to conspire with applicant's attorney. Moreover, this communication was with applicant's attorney's
The communication was insignificant and inconsequential, not related to scheduling or availability of the report.
Favours Applicant prevailed
This supported the conclusion that the communication did not warrant replacement of the QME.
From the decision · page 11Although we recognize that the QME should communicate simultaneously with both parties to avoid an ex parte communication, the September 23, 2016 phone call was insignificant and inconsequential. Therefore, the record does not support the remedy of replacing the QME.
The WCJ acted within discretion to reopen discovery on all issues to ensure substantial evidence and due process.
Favours Applicant prevailed
This supported the decision to uphold the order reopening discovery.
From the decision · page 11The WCJ acted within his discretion to reopen discovery on all issues and further discovery may be warranted in order to ensure there is substantial evidence in the record to address the issues still in dispute. We will thus retain the order reopening discovery in the new decision.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Denied engaging in ex parte communication with applicant's attorney; communication was a reasonable request for clarification and insignificant.
The Appeals Board found the communication insignificant and not warranting replacement.
From the decision · page 134. The psychological QME Dr. Antonio Madrid did not engage in ex parte communication with applicant in violation of section 4062.3 or violate AD Rule 41.5, and there is no basis for a replacement psychological panel.
Reports are substantial evidence.
From the decision · page 133. The reports of the orthopedic QME Dr. Robert Bruckman are substantial evidence.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803
A new QME panel is provided if there is ex parte communication and the aggrieved party elects to terminate the evaluation within a reasonable time.
The Board considered this standard in evaluating the remedy for the alleged ex parte communication.
From the decision · page 15Pursuant to Suon, section 4062.3(g) provides for a new QME if there is an ex parte communication with the QME and the aggrieved party elects to terminate the evaluation within a reasonable time following discovery of the prohibited communication. (Suon, supra, 83 Cal.Comp.Cases at pp. 1814-1815.)
Labor Code section 4062.3
Ex parte communication with a QME is prohibited under Labor Code section 4062.3.
The Board applied this standard to assess whether Dr. Madrid engaged in prohibited ex parte communication.
From the decision · page 9The Appeals Board shall retain jurisdiction in all cases to determine disputes arising from objections and whether ex parte contact in violation of Labor Code section 4062.3 or this section of Title 8 of the California Code of Regulations has occurred. If any party communicates with an evaluator in violation of Labor Code section 4062.3, the Medical Director shall provide the aggrieved party with a new panel in which to select a new QME or the aggrieved party may elect to proceed with the original evaluator....
Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596
Removal of a QME is discretionary and requires significant prejudice or irreparable harm, or that reconsideration is inadequate.
The Board applied this standard to determine whether to replace Dr. Madrid as QME.
From the decision · page 8Removal is discretionary and is generally employed only as an extraordinary remedy which must be denied absent a showing of significant prejudice or irreparable harm, or that reconsideration will not be an adequate remedy after issuance of a final order, decision or award. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133]; Cal. Code Regs., tit. 8, § 10955(a).)
What proof carried it
The evidence the panel weighed, by kind.
The September 23, 2016 communication between Dr. Madrid's office and applicant's attorney's office was insignificant and inconsequential.
From the decision · page 11Although we recognize that the QME should communicate simultaneously with both parties to avoid an ex parte communication, the September 23, 2016 phone call was insignificant and inconsequential. Therefore, the record does not support the remedy of replacing the QME.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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