In this video, Los Angeles workers compensation Attorney Michael Burgis provides a brief overview of work comp case Sandab Suon vs California Dairies I. THE RULINGS 1. Disputes regarding information provided to the QME are determined by the WCAB if the dispute cannot be informally resolved.
2. § 4062.3(b) does not provide a specific timeline for the opposing party to object to the QME's consideration of medical records and information, the opposing party must object to the proposed medical records to the QME within a reasonable time.
3. If the aggrieved party elects to terminate the evaluation by the QME and seek a new evaluation due to an ex parte communication the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.
4. The WCJ has wide discretion to determine the appropriate remedy for a violation of § 4062.3(b).
5. Removal is the appropriate procedure to challenge a decision regarding disputes over information provided the QME and ex parte communication with the QME.
II. FACTUAL AND PROCEDURAL BACKGROUND The applicant filed three claims that included among other things, injury to the heart and psyche. An order issued allowing additional QME panels in internal medicine/cardiovascular and psychiatry. The order included all three case numbers. Two different carriers, ICW and Hartford were the carriers. Dr. Weber, the QME in internal medicine concluded in a report dated 8/3/15 that the heart condition was non-industrial.
At a 2-10-16 deposition of Dr. Weber, the applicant inquired of Dr. Weber whether Dr. Weber would be willing to review a psychiatric QME report regarding stressful activities or events at work.
Dr. Paul, a psyche panel QME, in one of the claims [ADJ 9013590], evaluated the applicant and reported on 3/16/16. On 4/19/16 defense counsel, representing Hartford, sent a letter to Dr. Weber, the cardiovascular QME, enclosing Dr Paul's 3/16/16 psyche report. The letter, in substance, requested that Dr. Weber review the QME report of Dr. Paul reminding Dr. Weber that in his deposition he was receptive to reviewing a psyche QME report.
Defense counsel's 4-19-16 letter to Dr. Weber listed the applicant's attorney by name but not his address. Nor was there a proof of service attached to the letter. On 4-20-16, at a priority conference, the WCJ ordered an additional QME panel in psychiatry on a different claim (A DJ 9489408]. ICW petitioned for removal from the order for an additional panel on 5-13-16. In response the WCJ issued an order vacating the order for an additional panel on 5-31-16 and indicated the matter would be set for status conference.
Dr. Weber responded to defense counsel's 4-19-16 letter and restated his opinion, in a report dated 8/31/16, that the psyche report of Dr. Paul did not change his opinion; the applicant’s cardiac condition was nonindustrial. Applicant's counsel, after receiving Dr. Weber’s noncompensable report of 8-31-16, sent a letter to defense counsel on 9/20/16. Applicant’s counsel informed defense counsel that he (applicant’s counsel) had not been served with the 4-19-16 correspondence from defense counsel addressed to Dr. Weber which enclosed the psyche report of Dr. Paul of 3-16-16.
Applicant's counsel sent a second letter on 10/4/16 confirming receipt of Dr. Weber's non-industrial report of 8/31/16 and again reiterated that it had not been provided with the defense counsel's 4-19-16 letter to Dr. Weber.
The WCJ also concluded that Hartford had an ex parte communication with Dr. Weber. The WCJ ordered the parties return to Dr. Paul for any new issues related to stress and/or psychiatric injury. The WCJ also ordered a new QME panel in internal medicine or select an AME. In addition, the reports and deposition transcript of Dr. Weber were not to be provided to the new internal QME or AME.
ICW filed a petition for removal and in the alternative a petition for reconsideration from the WCJ's orders.
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