Ever since the decision in Alvarez v. Workers’ Compensation Appeals Board  the issue of ex parte communication with a qualified or agreed medical evaluator, as prohibited by Labor Code § 4062.3 has been a cloudy one.  The very language of the Alvarez opinion (“an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable”) leaves nothing more to grasp at than mist when one puts himself to the task of defining what is, and what is not, ex parte communication.

In the recent case of Morales v. Workers’ Compensation Appeals Board, the Court of Appeals denied a petition for writ of review of a decision touching on this topic.

The skinny:  providing the remedy of a replacement panel for applicant’s act of sending medical records to the a Qualified Medical Evaluator and only one of two defendants does not prejudice the applicant, nor is it a final order.

In this case, after the Workers’ Compensation Judge ordered a new panel to issue on defendant’s motion, applicant’s attorney petitioned for reconsideration or removal.  The petition for reconsideration was denied as the ordering of a replacement panel was not a final order.  The petition for removal was denied because applicant failed to show any prejudice from the WCJ’s order.

The facts of this scenario present some interesting questions regarding the right to a new panel.

The ideal outcome for co-defendants can be mutually beneficial, such as a favorable judgment regarding causation, extent of impairment or apportionment.  For co-applicants, such as competing dependents in a death claim, there is only one pie, and it can only be sliced so many times.

Let’s assume the last QME standing after the panel selection process is known to the defense community to issue high-rating reports.  Seeing that this panel QME is not good for either defendant, could one of them send an ex-parte communication to allow the other to demand a new panel?  Or, without planning it, could one defendant accidentally forget to serve the other, the way an applicant might not serve a second defendant, as appears to be the case in Morales?

The ethical implications of this tactic are questionable at best, but the thought does present an interesting question regarding the inner workings of the new-panel remedy.

In any case, absent a settlement, I expect we will see the case of Morales v. Workers’ Compensation Appeals Board again.