25 Jul 2019

California: Ex Parte Communication: The Important Distinction Between Violations of Labor Code Sections 4062.3(b) and 4062.3(e)

The question of providing information to a Panel Qualified Medical Evaluator (PQME) or Agreed Medical Evaluator (AME) is a frequent source of litigation before the Workers’ Compensation Appeals Board (WCAB). In fact, the WCAB has issued Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal. Comp. Cases 136 (Appeals Board en banc) and Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803 (Appeals Board en banc), in an attempt to clarify these rules.

Labor Code Section 4062.3 is the statute that provides the rules applicable to the provision of information as well as communications with both PQME’s and AME’s. The Maxham case focused on Labor Code Section 4062.3(b) and whether a letter provided to the doctor was a "communication" or "information". Suon, on the other hand, addressed the distinction between violations of Labor Code Sections 4062.3(b) and 4062.3(g).

Recently, a panel of commissioners with the WCAB issued Rivera v. Western Consolidated Equities dba The Monterey Apartments and State Farm Insurance Company, ADJ9229300. Rivera addressed both Maxham and Suon in the context of a letter sent to the PQME, but copied to the other side, where the initial evaluation had occurred and no re-evaluations were scheduled. As Labor Code Section 4062.3(e) only required the letter to be served on the other side, there was no violation of Labor Code Section 4062.3(e) and therefore no ex parte communication under Labor Code Section 4062.3(g), as that section is specific to violations of Labor Code Section 4062.3(e).

This conclusion, however, did not answer the question of whether the letter, any representations made in the letter, or any attachments to the letter were properly sent to the PQME. The panel found that since the letter and Disability Unit Evaluation (DEU) rating did constitute "information" under Labor Code Section 4062.3(b), the letter had to be reviewed by the other side before it could be sent to the doctor. Thus, there was a violation of Labor Code Section 4062.3(b) even though there was no ex parte communication under Labor Code Section 4062.3(g). As there was solely a violation of Labor Code Section 4062.3(b), the panel carefully and correctly analyzed the criteria set forth in Suon in establishing an appropriate remedy.

In conclusion, far too often in WCAB proceedings the practitioners assume that if the information is not correctly submitted to the PQME or AME, that there is automatically an ex parte communication and all of the serious consequences set forth in Labor Code Section 4062.3(g) become applicable. However, before consideration is given to Labor Code Section 4062.3(g), it is first critical to ask whether the issue relates to an actual communication with the doctor or whether it relates to the information being submitted to the doctor. Depending on the answer to this question, the analysis could lead to a very different outcome.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.