WCDefenseCA

What does a gathering of former romantic interests on one hand and an unlawful communication with a medical evaluator on the other have in common?  Both are called “ex-parte.”  Get it?

Yeah, I know, I know…

So, dear readers, your humble blogger brings you now the story of Vallem v. State of California/SCIF, a recent panel decision originating in Stockton.

Applicant’s claim for injury to the heart and psyche was resolved by way of stipulation, with 47% permanent disability and future medical care included.  The parties had used an AME, but, as the matter was pending on the issues of applicant’s petition to reopen, applicant had apparently called the AME to set an appointment for treatment at the advice of his primary treating physician.

Defendant sought an order striking all the reports and transcripts of the AME, and to obtain an order for the Medical Unit to issue a QME Panel.

The Petition was denied and, on removal, the WCAB concurred with the WCJ, who had relied on the Alvarez case for the proposition that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussions would be unreasonable.”

Just thought thoughts from your humble blogger:

One of the amendments of SB-863 was to draw a line between QMEs and AMEs in terms of communication:  Labor Code section 4062.3(f) provides that “[o]ral or written communication with physician staff or, as applicable, with the agreed medical evaluator, relative to nonsubstantial matters such as scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, do not constitute ex parte communication…”  So, calling the AME to schedule an appointment, whether for treatment or an evaluation, should not constitute ex parte communication on its face.

Additionally, subsection (i) provides that “oral or written communications by the employee … in the course of the examination” do not fall into the scope of ex parte communication either.

So… what happened here?  The injured worker contacted the AME and was seen at an appointment, which was probably a mix of treatment and evaluation.  The ex parte is not there…

However, compare that to the same section in pre-SB863 Labor Code.  Section 4062.3(e) made no distinction between an AME and a QME for communications of any sort.  But, even still, assuming that Alvarez still applies in a post-SB863 world, a communication to schedule an appointment appears safe from an ex parte finding.

Have a good weekend!