The question of what constitutes ex parte communications with a Panel Qualified Medical Evaluator and objectionable non-medical information was addressed by the Workers’ Compensation Appeals Board in Catalina Torres v. Pacific Coast Products and Pacific Compensation Insurance Co. (2013 Cal. Wrk. Comp. P.D. LEXIS 287). In consideration of these issues the Court relied upon Labor Code § 4062.3 and California Code of Regulations § 35.
Applicant sustained an admitted industrial injury on August 8, 2006 to her spine, right upper extremity, and right knee and claimed she sustained injury to right lower extremity and psyche. Dale Baumbach, Ph.D., evaluated the applicant as panel QME in psychology. In his first report dated September 5, 2008, Dr. Baumbach noted that the applicant was accompanied by her daughter. In his report dated October 30, 2009, he reported comments from the daughter about the applicant’s eating, activities and memory. In his reported dated April 13, 2010, he reported the he interviewed applicant’s daughter and described what the daughter reported. In a report dated July 13, 2010, he responded to a letter from defense counsel requesting his review of another medical report; however the letter from defense counsel did not mention the interviews with applicant’s daughter.
On February 21, 2012, defense counsel deposed Dr. Baumbach and questioned him about his interviews with the applicant’s daughter. On May 14, 2012, defendant filed a Petition to Strike the reports of Dr. Baumbach and requested a new panel in psychology. The WCJ issued a Findings of Fact and Order dated October 29, 2012 denying the Petition reasoning that defendant’s delay in raising the issue was more of a concern then the alleged ex parte communications. Defendant filed a Petition for Removal requesting that the WCAB rescind the Order on the grounds that applicant engaged in substantive ex parte communications with a panel QME amounting to a due process violation.
In addressing these issues, the Court opined first that the communications between the daughter and the QME were not ex parte communications because the daughter was not a party. The Court based its decision on the following statutory language:
1. If a party communicates with the agreed medical evaluator or the qualified medical evaluator …the aggrieved party may elect to terminate the medical evaluation…Labor Code § 4062.3 (g)
2. The party making the communication prohibited by this section shall be subject to being charged with contempt… Labor Code § 4062.3 (h)
3. If any party communicates with an evaluator in violation of Labor Code Section 4062.3. the Medical Director shall provide the aggrieved party with a new panel… Cal. Code Reg.§ 35(k).
The Court then addressed the issue of whether the communications between the daughter and the panel QME amounted to “nonmedical information” objectionable under Labor Code § 4062.3(b) and concluded, in fact, that the conversations were subject to this provision. However, since neither the statute nor the regulation sets forth a time frame in which an objection must be lodged the Court determined that the defendant should have objected with in a “reasonable time” standard. As such, the Court affirmed the Order denying the Petition To Strike because defendant unreasonably delayed by waiting nearly two years in objecting when it was on notice of the potentially objectionable communications based on the April 13, 2010 report, which explicitly discussed the interview with the daughter.
The relevance of this ruling to employers/carriers is the Court’s determination that input from third parties such as friends, family members, significant others, at a QME or AME, while not improper ex parte communications, may reasonably be regarded as objectionable non-medical information. Employers/carriers should therefore carefully review panel QME and AME reports and be on the lookout for potential input from third parties particularly when the report notes that the applicant was accompanied by such a person. If there is suspicion that an evaluator relied on information from a third party but it is not clearly indicated in the report, then the evaluator should be deposed to determine if the evaluator did so. If, as in this case, the report clearly identifies that the evaluator relied on input from third parties, an objection letter should be sent and a Petition to Strike filed immediately