WCDefenseCA

There are all sorts of parties we might encounter in our day-to-day lives, dear readers; political parties, birthday parties, graduation parties… the list goes on and on.

But, in our beloved swamp of workers’ compensation the “party” is pronounced “par-tay” and the type of par-tay that gets everyone excited is the ex parte. 

But we’ve had a long history of deciding what is and is not ex parte communication.  Originally, ex parte literally meant only communicating with one party.  But, as the same sick and distorted evolutionary track that yields the platypus, nature’s joke, ex parte in workers’ compensation means so much more than it should.

When touching on ex parte communication with a med-legal examiner, AME or QME, ex parte is defined under Labor Code section 4062.3 which details the procedures for what constitutes ex parte communication and what does not.  For example, sending medical records to a QME at the same time as to opposing counsel could constitute ex parte communication, if it is before an examination.

But there are certain communications with medical-legal examiners which are NOT ex-parte.  For example, 4062.3(f) holds “communications … relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex pate communication in violation of this section unless the appeals board has made a specific finding of an impermissible ex parte communication.”

So, let’s look at a recent panel decision, Reynolds v. Hostess Brands, a recent panel decision.  The WCAB adopted the WCJ’s report so we don’t have much guidance from the commissioners, but the facts present an interesting scenario with some concerning implications.

On its face, the Reynolds question asks – is correspondence regarding the payment of the AME or QME’s bills “nonsubstantial” as contemplated by Labor Code section 4062.3(f)?  Therein, the AME requested pre-payment for a deposition, which defendant paid.  However, when applicant’s counsel “sought to travel out of state to enjoy the MLB World Series” and requested a change in deposition date, the AME would not agree to refund the amount paid.  Applicant’s counsel then claimed the amount paid for the deposition was “in excess of fee schedule” and, according to the WCJ’s opinion on reconsideration, “in no uncertain terms accused Defendant of paying fees in excess of the fee schedule to attempt to sway [the AME] to provide a more favorable opinion.”

Did defendant’s payment of the deposition fee constitute an impermissible ex parte communication because the payment was not copied to applicant’s counsel?  Or was this a “nonsubstantial matter” as contemplated by Labor Code 4062.3(f)?

Well, the WCJ found that payment of a deposition fee is NOT “insubstantial” and applicant’s counsel should have been copied on the communication for payment.

The WCAB denied reconsideration and incorporated the WCJ’s opinion, with then net result of defendant having to pay for a whole new med-legal. 

What can we take away from this?  Well, for starters, it appears the WCAB is signaling to us that communications involving payment of bills, especially deposition fees, must be communicated to the other party.  However, as the WCJ’s opinion notes, the parties are well within their rights under California Code of Civil Procedure section 2034.450(a), to issue payment at the commencement of the deposition, regardless of the polices of the med-legal. 

Pursuant to CCP 2034.430(b), it is the party desiring to depose the expert that shall pay the expert’s reasonable fees for the deposition.  Accordingly, if applicant’s counsel wishes to depose the med-legal, applicant must first pay the med-legal costs for the deposition and then seek reimbursement from the defense.

Well, when applicant’s counsel sets the deposition of a med-legal, can defendant claim impermissible ex-parte communication if applicant’s counsel fails to bring a copy of the check to hand to defendant at the same time as to the medical expert?

Furthermore, in this Reynolds case, it appears that applicant’s petition to strike the AME was copied to the AME.  What happens when an applicant attorney accuses the med-legal of being bribed by the defense, but fails on the petition to strike?  If the WCAB rules that there was no impermissible ex parte communication, applicant’s counsel is in a position to demand a replacement anyway – as the well is now poisoned for making the allegations.

This is not far from a man accused of murdering his parents asking for leniency as, after all, he is now an orphan!

The net result of the Reynolds case has serious implications for a seriously flawed med-legal system as it is.  If the WCAB does not punish this behavior, we can expect to see more of this tactic.  We can also expect to see more litigation regarding what constitutes “impermissible ex parte communication.”  If the med-legal sends his bill for a deposition only to the defendant, do we need to get a new med-legal?  If applicant’s counsel is not copied by defendant’s interpreter vendor sending a confirmation notice, is that sufficient to strike the QME?

Perhaps it really is time for the workers’ compensation community to take stock and review whether the 2005 creation of the QME panel system, rather than allowing parties to retain their own experts, has shown to be a net positive or a net negative. 

What do you think, dear readers?

Alrighty dear readers!  Here we are again, celebrating Adams Family Day Wednesday with just another day ready for fun.  So since last blog post was about a current favorite TV show, I thought I’d share with my readers a favorite oldie movie of mine too: In 1992 two parents are abducted onto a planet of intellectually challenged denizens and get involved in a civil war to help the good guys regain the throne of the planet.  The movie was called Mom and Dad Save the World and if you haven’t seen it yet I highly recommend it!

Anywho, one of my favorite lines in that movie is when one of the good guys is trying to rally his people to help him storm the castle and tells them “what we lack in intelligence we make up for in good intentions.”

So, anyways, let’s take a look at the current med-legal fee schedule.  In a supreme bit of irony, the fee schedule went into effect on April Fools’ Day in 2021.  Now that we’ve had it for over a year, what results can we see from this new system?  Did the extra money attract the top physicians to write excellent reports and minimize the need for more med-legal services?  Are cases now resolved more expeditiously with an accurate level of benefits and lower costs for employers?

Come on people – it’s been over a year! Certainly, there are now lots more QMEs so that the wait times are lower and the reporting is more consistent, right?

Well, the CWCI has prepared a study reflecting that compared to 2019, there’s been more than a 50% increase in payments for face-to-face exams and almost 40% for supplemental reports.  $3 per page in review as per the fee schedule has also drastically increased the cost of an initial exam by almost $2k. 

According to the CWCI, the fee schedule resulted in a 3% increase of QMEs in the active evaluator pool as compared to 2022 and 1% less than 2019!  In other words, the new fee schedule has enriched existing QMEs with huge fees, but has not attracted more QMEs to the industry. 

The new regulations have also failed to provide recourse for employers when reports are not substantial medical evidence or to recoup costs.  There is practically no disincentive to produce intentionally vague or incoherent reports to entice parties to depose the doctor or seek a supplemental report, generating more fees for the doctor and more costs for the defense.  We all recognize those doctors on our panels that will force at least three evaluations, four depositions, and seven supplemental reports before there’s enough in the record that you can get a ruling other than “develop the record.”  Looking at you, Dr. Nick Riviera…

via GIPHY

Of course, this is great for the applicant bar – the more expensive the claims process is due to med-legal fees the more inflated the “nuisance” value of each claim is.

But, before you become dismayed, dear readers, please recall that wonderful line from Mom and Dad Save the World as referenced above.

Till next time, dear readers…