Archive for March, 2013

Same-time Service of Vocational Evaluation to AME and Opposing Counsel is Ex-Parte

March 1st, 2013 No comments

Imagine the following scenario: your fearless and zealous attorney appears at the deposition of an Agreed Medical Evaluator only to be handed a document by opposing counsel.  Assuming this is a signed stipulation to 0% impairment with no need for future medical, adorned with a hand-written apology and a check for all defense costs today (just work with me here), your attorney smiles and prepares to shake hands with the applicant’s… until he sees that it’s just a vocational evaluation report, and a new one at that.

The applicant’s attorney mutters something about service before turning to the AME and offering a copy of (presumably) the same report.

While your attorney is flipping through the pages trying to get a grip on the report, the AME has already glanced at the conclusions on the last page and started testifying to his opinions on the matter…

What just happened?

Well, if you asked the Workers’ Compensation Appeals Board, applicant’s counsel just engaged in ex parte communication in violation of Labor Code section 4062.3, so out goes the AME’s deposition transcript, the post-deposition reports, and the AME’s “AME” designation.

In the recent case of Martin Trapero v. North American Pneumatics, the applicant’s attorney did just that, and so the defense counsel objected to the report and the manner of communication.  The defense also sought to have the AME’s report and deposition transcript stricken, along with the report.

The workers’ compensation Judge, however found that the communication was perfectly kosher, seeing as it was a subsequent communication, permitted by section 4062.3(e) (“[a]ny subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator.”  Handing it to the opposing party and then handing it (30-60 minutes later) to the AME fits in the “subsequent” rule.

In reversing the WCJ, the WCAB found that “in springing the vocational report on defense counsel when the AME was about to be deposed, applicant’s attorney denied defense counsel the opportunity to determine if this new ‘information’ was something that he would agree to provide to the AME.”  The WCAB also noted that this was not a subsequent “communication” as contemplated by section 4062.3(e), but rather “information”, as contemplated by 4062.3(c) (“the parties shall agree on what information is to be provided to the Agreed Medical Evaluator.”

The WCAB also ordered that the defense costs associated with the deposition be paid by applicant’s counsel.

Now, in this case, this is a win for the defense in particular, but generally speaking, this is a cautionary tale for all of us playing the game – it is better to postpone a deposition rather than throw a monkey wrench in the entire case and kick the ball back to square one of medical-legal evaluations.

By the by, the Court of Appeal denied applicant’s petition for a writ of review.

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