Archive for July, 2013

Yes, Virginia, Ex Parte Communication is Wrong

July 8th, 2013 No comments

Take a look at your files, do you have a certain PQME on any of them?  A certain… Ajit Singh Arora, M.D.?

It looks like Dr. Arora was reprimanded by the Administrative Director’s QME discipline unit for engaging in ex parte communication with applicant’s counsel.  Apparently, the PQME engaged in “ex parte communication with applicant’s attorney regarding the fee for his deposition, and notification that his deposition would be cancelled because he had not received advance payment in the amount he had requested.”

Ex parte communication between a panel qualified or agreed medical evaluator and one of the parties is a serious issue.  Attorneys often try to brush it off with words like “clerical” or “minor,” but the damage is done not necessarily by the communication itself, but by the damage it does to our entire medical evaluation system.

The Labor Code tells parties to workers’ compensation matters that they must forfeit their rights to due process: one no longer has the right to put on witnesses, to offer evidence, to rebut the claims made, and instead must rely on state-provided witnesses (PQMEs) or to present evidence only by permission (AMEs).

On top of that, parties cannot cross-examine expert witnesses before the Judge in open court – all medical-legal discovery is relegated to reports and depositions, even though the WCJs are charged with determining the credibility of the witnesses, which is more effectively done in person.

To add to that the idea that we’re going to wink and nod or offer no more than a slap on the wrist to those who impeach the limited credibility of the PQME system does no favors to this process.  When QMEs are given temporary suspensions for engaging in ex parte communication, it naturally stokes the paranoia of those convinced that the panels are already stacked against them with biased physicians (you know who you are).

In any case, we as a community should be diligent about ex parte communication – whether the doctor calls you or opposing counsel, it should always be made known to the other party and reported to the Medical Unit, and the Medical Unit should be diligent about weeding out QMEs who think that they get to decide what type of ex parte communication is acceptable and what type isn’t.  We’re in the age of e-mails and facsimiles – there’s no reason why all communication can’t be made simultaneously to all parties.

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Was that Phone Call Ex Parte Communication? (YES!)

July 5th, 2013 No comments

So, dear readers, are you interested in a crackpot thought your humble blogger had as he sipped his Diplomatico Rum and glared menacingly at the outside world?  If your humble blogger were to call a QME to set up an evaluation for an applicant, would that be ex parte communication?

After all, the panel opinion in the Lewis Cunningham v. County of San Bernardino matter concluded that contact between an attorney and a Qualified Medical Evaluator was not ex parte communication when the substance was to facilitate a deposition or obtain a copy of an echocardiogram report.

Even the fateful Alvarez decision concluded that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.”

Well, Labor Code section 4062.3 requires all communication between a PQME and a party to be in writing and either sent to the other side before an evaluation or at the same time as to the PQME (and presumably from the PQME to both sides).

But look down at subsection (f), which specifically excludes from the definition of ex parte communication “[o]ral or written communications … with the agreed medical evaluator, relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report.”  There is no corresponding provision for panel qualified medical evaluators, just AMEs.

Interestingly enough, if we look at Labor Code section 4062.3, subsection (f) from any time prior to January 1, 2013, we find the following instead: “[e]x parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited.”  In fact, the entire Labor Code section fails to use the terms “inconsequential” or “nonsubstantial” even once.

So, dear readers, what is the take-away from all this?  Your humble blogger submits to you the following thought:  Because the Legislature reviewed and amended Labor Code section 4062.3, making changes effective January 1, 2013, it specifically rejected the notion that there might be “inconsequential” or “nonsubstantial” ex parte communication with a panel qualified medical evaluator.

In other words, all panel and case authority which suggests that there is any communication with a panel qualified medical evaluator that (1) does not need to be in writing; or (2) can be done on an ex parte basis is superseded and invalidated by the latest amendments to the Labor Code, effective January 1, 2013.

Now, my readers should recognize that when an applicant’s attorney does this, it is ex parte communication, is punishable by fines, fees, penalties, sanctions, a new panel, and the attorney has to offer a written apology and provide video footage of him or herself standing in a corner weeping gently.

On the other hand, when a defense attorney does this… “come on! It’s just a harmless scheduling discussion.”  For authority supporting this position, other than just because Greg said so, please see… [citation needed].

Your humble blogger wishes you a good weekend, dear readers!

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Happy Independence Day!

July 4th, 2013 No comments

Hello to my beloved readers!  To those lucky few that won’t see this post until Friday (because you’re happily out of your office) I say congrats and enjoy.  To those poor devils chained to their desks like this humble blogger, I say to you don’t give up – some day we too will have an independence day!

As everyone knows, July 4th celebrates the defeat of alien invaders by Jeff Goldblum and Will Smith, as depicted in this video.

Here’s hoping you have a safe and happy 4th of July and get a chance to enjoy the sunshine and the BBQ grills.


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Opioid Rx On the Rise

July 3rd, 2013 No comments

Research by the good folks at the California Workers’ Compensation Institute shows that opioid painkillers in California are at an almost all-time-high (get it? high? because of the drugs…) rising to almost 8% of all outpatient drugs dispensed to injured workers.  Among those prescribed are: Oxycodone, Morphine, and Fentanyl.

So why the spike?  Why are workers today getting more drugs?  Why are doctors today prescribing more?  Hasn’t medical technology improved to provide more treatment?

It’s also not like injuries are worse today than they were ten or more years ago:  there’s more safety equipment, more incentives to keep workers safe, and a lot of the dangerous manufacturing jobs are gone to states and countries that want to attract employers.  After all, as Frank Sobatka said, “you can’t get hurt if you’re not working.”

Well, your humble blogger is going to guess the answer boils down to money.  The doctors have found they make more money rubber-stamping prescriptions and limiting face time, or the employees have found they make more money faking pain and selling the drugs (or both).  After all, it’s a victimless crime (unless you consider the insurers paying for the drugs and the people illegally getting them to be victims).

The solutions are already there – employers insist on drug tests to make sure the employee is actually taking the drugs prescribed (whereas it used to be to make sure the employee wasn’t on drugs); or sometimes prescriptions might be given in smaller amounts more frequently, to require more frequent check-ins and supervision.

But it isn’t working – the opioid painkillers now make up 20% of the workers’ comp prescription payments, and those numbers seem likely to go up as time goes on.

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Drunk Employees = Serious and Willful Penalties

July 1st, 2013 No comments

Can Serious and Willful Misconduct be expanded to include the actions of a drunk employee?  Can the theory include allowing an employee to remain at work?

That was the question posed by the recent writ denied case of Sandra Ellefson v. County of Los Angeles.

There, the employer was aware that an employee was drinking at work, and had been dealing with a drinking problem for 17 years.  Applicant had seen his drinking, and complained about abusive behavior (pinching, pushing, pulling her hair, stepping on her toes) to everyone short of Santa Clause, including her own supervisors and Drunky McDrunkerson’s supervisors too.

Things moved swiftly, as they often do in government, and four months later applicant still sat facing Mr. Al Caholic’s desk.

The employer’s witnesses, however, testified that they were only informed of the drinking problem, and not the abuse, and that their efforts were focused on getting the poor guy into treatment (FOR SEVENTEEN YEARS).

Ultimately, while walking around drinking Tequila, Sir Drinkalot tripped, fell on applicant, and caused her chair to break, which then in turn caused her to hit her face on her desk.  After resolving her case-in-chief, applicant also pursued Serious and Willful Misconduct penalties, which the workers’ compensation Judge denied.  While the defense was apparently celebrating their victory at Happy Hour, applicants’ counsel filed a petition for reconsideration.

Generally speaking, your humble blogger disfavors rulings or findings that are adverse to a defendant.  But in this case, I can’t help but side with the Workers’ Compensation Appeals Board in its finding that defendant had committed serious and willful misconduct by ignoring the repeated complaints (remember, dear readers, the County of Los Angeles had been “dealing” with Mr. McCrunk’s drinking at work for 17 years!)

There was, however, a dissent: Commissioner Moresi made the point, as was made by the WCJ, that because of the 17 years without any injury, the employer had no reason to expect any injury to other employees.  Al was just being Al, and there was no reason to connect the dots between a habitually inebriated employee and actual injury (if this bomb hasn’t exploded yet, why would it ever?)

In all fairness, this is a valid point – time had effectively proven Mr. Barfly to be relatively harmless.  But, then again, the day before Thanksgiving, each turkey is more convinced than ever that it is loved and perfectly safe, based solely on the events of the preceding 364 days.  We all know that Thanksgiving is coming sooner or later.  The past 17 years were a windfall for the employer – it had allowed a worker to remain perpetually drunk at his post and had avoided the likely consequences of his inebriation: injury to himself or others.

By the by – does no one care that the County of Los Angeles has had an employee at his post, drunk, for the last 17 years?  The opinion even notes testimony that supervisors had noted unfinished work, clear mistakes, and slurred speech.  And now the good citizens of Los Angeles County get to ask their elected officials why the penalties are being taken out of the budget instead of going to another project.

In any case – if you’re an employer, please, please, please don’t let your employees remain at work drunk.   Send them home, discipline them, fire them, get them into treatment – do whatever.  But don’t expose your employees, your customers, or even your management staff to what could easily happen when a person drinks too much.


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