Medical evaluator's call to defense attorney results in removal from case

California law expressly prohibits ex parte communications between a panel-qualified medical evaluator and a party. When a prohibited communication occurs, the aggrieved party is entitled to a new evaluation from another panel-qualified medical evaluator, and the party that violated the law may be liable for costs.

Case name: Alvarez v. Workers' Compensation Appeals Board, et al., No. B218847 (Cal. Ct. App. 05/14/10).

Ruling: The California Court of Appeal found that the claimant was entitled to have a new panel-qualified medical evaluator appointed because the original evaluator made an ex parte telephone call to defense counsel. It returned the case to the Workers' Compensation Appeals Board.

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What it means: California law expressly prohibits ex parte communications between a panel-qualified medical evaluator and a party. The only exception is for communications by the employee or deceased employee's dependent in connection with an examination. When a prohibited communication occurs, the aggrieved party is entitled to a new evaluation from another panel-qualified medical evaluator, and the party who violated the law may be liable for costs.

Summary: A waitress died from a brain hemorrhage and hypertension. Her widower and guardian of their two minor children sought workers' compensation death benefits. In preparing his report, the panel-qualified medical evaluator recalled that one of the decedent's sisters had said that a possible source of her sister's stress was alleged sexual abuse of her daughter. However, the evaluator could not locate the medical record or cite the page that contained the sister's statement. He called the attorney for the State Compensation Insurance Fund to notify her that he could not locate certain records. When the claimant found out about the call, he petitioned to have a new evaluator appointed. The WCAB denied his request. The Court of Appeal annulled the WCAB's decision, granting the claimant's request and awarding him costs.

The court found that the statutory language "clearly evidences the intent of the Legislature to prohibit unauthorized ex parte communications, whether written or oral, between a party and an agreed or panel-qualified medical evaluator." It pointed out that the subject matter of the communication is irrelevant because "prejudice, or lack thereof, is not a consideration."

Even though the communication may have appeared innocuous because it concerned an administrative or procedural matter rather than the substance of the case, "there is no way for the WCAB to determine what exactly was said during the communication or the effect of the communication," the court concluded.

Read more at the WorkersComp Forum homepage.

August 12, 2010

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