WCDefenseCA

Happy Monday, dear readers!

During a C&R walkthrough recently, the WCJ advised “your settlement is a little light, to approve it I think I’ll give the injured worker another $10,000,” to which the clever defense attorney replied “that’s very kind, your honor, I’ll try to get my client to throw in some extra money too.”

And on that note, I will refer my readers to one of my older posts, in which I argued that changes to Labor Code section 4062.3 regarding ex parte communication override the Court of Appeal’s decision in Alvarez.

Well, in at least one case, the WCAB was not persuaded by this crackpot theory, so it looks like Alvarez stands.  Additionally, Lexis has a good discussion of another recent panel decision, Turner v. PT Gaming, in which the WCAB again concluded that some communications with QMEs are so minor that they do not trigger the usual remedies of ex parte communication.

In Turner, applicant sought a replacement QME on the theory that defendant engaged in prohibited ex parte communication when the defense attorney’s advocacy letter leading up to the initial examination requested the QME serve the report on the defense attorney and the adjuster, but did not specifically request a copy be sent to applicant’s counsel.

Applicant’s attorney then claimed that there was no receipt of the QME’s initial report until approximately five months after it was served on defendant.  Applicant’s counsel also filed a formal complaint against the QME with the DWC Medical Unit, and filed a petition to disqualify the QME.

In response, the PQME advised that he was under the impression that this was a unilateral defense QME appointment. (But how could the QME have thought that… unless the applicant attorney didn’t send an advocacy letter).

Applicant argued that the ex parte communication, sending the reports only to the defense, entitled applicant to a new panel.  Applicant further contended that a new panel was warranted because the report was not served on applicant within 30 days of the evaluation.

Both theories were rejected.  The WCJ and a split panel majority of the WCAB reasoned that the communication to which applicant objected was so inconsequential that it would not warrant restarting the panel process.  Furthermore, applicant already had the report when he objected to it being late.

However, one commissioner dissented, reasoning that the defense attorney not only failed to ask the QME to serve both sides, but also failed to serve applicant upon seeing that opposing counsel was not listed on the QME’s proof of service.

Your humble blogger has some thoughts on this, as he does on most things.  It is a source of constant frustration for many in the defense community that applicants often take the position that they have no duty of diligence.  The reasonable thing to do in this situation is to call the QME and ask when the report will be ready.  Had applicant’s counsel called the QME’s office to ask on the status of the report, there would have been no need to wait five months to finally obtain the report.

Furthermore, one objection notably absent from applicant’s arguments is that an advocacy letter was sent to the QME without first being sent to applicant’s attorney.  That’s because it was sent and applicant’s counsel had an opportunity to object to the letter that did not specifically request a copy of the report be sent to both sides.  But there was no such objection, and as defendants can regularly expect to hear when pleading their cases – an objection not made is an objection waived.

In your humble blogger’s opinion, the result was correct in this case.

What do you think?