ADJ11105160 · December 23, 2024

The WCJ's order vacating submission due to alleged ex parte communication was rescinded because the record was insufficient to evaluate the issue and applicant was entitled to a hearing before the report was struck.

From the decision · page 12For the foregoing reasons, IT IS ORDERED that applicant's Petition for Reconsideration of the September 25, 2024 Joint Order Vacating Submission to Develop the Record and Setting Matter for Status Conference is GRANTED. IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the September 25, 2024 Joint Order Vacating Submission to Develop the Record and Setting Matter for Status Conference is RESCINDED and that the matter is RETURNED to the trial level for further proceedings consistent with this opinion.

The WCJ issued an order vacating submission due to alleged ex parte communication with Dr. Levine, but did not provide a hearing or admit evidence on the issue.

Favours Applicant prevailed

Without a developed record or hearing, the Board could not evaluate the propriety of striking Dr. Levine's report, leading to rescission of the order and return for further proceedings.

From the decision · page 11It is not clear whether defendant raised the issue of ex parte communication, and what the circumstances were if defendant did so. The WCJ did not hold a hearing or admit any evidence into the record on the issue of whether Dr. Levine's communication with applicant's daughter was prohibited ex parte communication, so that we do not have a sufficient record to consider the issue in the first instance. Moreover, as a matter of due process, applicant is entitled to a hearing before Dr. Levine's November 2022 report is struck from the record.

Dr. Levine concluded the primary cause of applicant's psychiatric injury was the work-related incident of October 16, 2017, found applicant permanently disabled with 100% industrial causation, and stated applicant reached maximum medical improvement from a psychological perspective.

From the decision · page 33, 6, 57.) Applicant's daughter attended the re-evaluation with her and described applicant's living situation, memory, and tendency to isolate herself. (Jt. Ex. 1, p. 3.) Dr. Levine concluded that the primary cause of applicant's psychiatric injury was the work-related incident of October 16, 2017. (Jt. Ex. 1, p. 58.) Dr. Levine also stated that applicant had reached maximum medical improvement from a psychological perspective. (Jt. Ex. 1, p. 58.) Dr. Levine also determined that applicant was permanently disabled and that 100% of the cause of her disability was due to the industrially related psychiatric injury. (Jt. Ex. 1, p. 58.)

Lab. Code, §§ 5900(a), 5902, 5903

A petition for reconsideration may only be taken from a final order, decision, or award, which determines substantive rights or fundamental threshold issues.

The Board treated the petition as one for reconsideration despite the order being non-final because it involved a mandatory provision requiring payment of costs and attorney's fees, making it effectively final.

From the decision · page 4I. For the reasons explained below, we will treat the Petition as one for reconsideration. We note that unfortunately, orders that include narrative statements cause precisely the sort of confusion that occurred here. Applicant seeks reconsideration or removal of the Order, which included an order for the parties to meet and confer prior to the status conference in an effort to resolve or determine whether they could agree to an agreed medical evaluator (AME) in psyche or a regular physician in psychiatry. The WCJ also noted within the Order that it "appears that the reporting of Dr. Levine should be stricken due to the ex-parte communication that took place." A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold" issue that is fundamental to the claim for benefits (Maranian v.

Lab. Code, § 4062.3(g), (i)

Prohibited ex parte communications with medical evaluators may lead to striking reports; however, oral or written communications by the employee or at the evaluator's request in connection with the examination are exempt.

The Board found it unclear if the communication between applicant's daughter and Dr. Levine was prohibited ex parte communication or exempt, and that the record was insufficient to evaluate this.

From the decision · page 9Additionally, the prohibition against ex parte communication may not apply to applicant's daughter as she may not be a party pursuant to section 4062.3(g) "If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation. (Lab. Code, § 4062.3(g) [emphasis added].) "Party" means any person or entity joined in a case, including but not limited to: (1) An applicant; (2) A defendant; or (3) A lien claimant. (Cal. Code Regs., tit. 8, § 10305(q).) Further, the prohibition against ex parte communication "shall not apply to oral or written communications... at the request of the evaluator in connection with the examination." (Lab. Code, § 4062.3(i).) It is not apparent from the record before us if the communication with the daughter was at the request of Dr. Levine in connection with the examination. Thus, we cannot evaluate whether the prohibition against ex parte communications applies to the daughter, and if the communication was exempt as it was at Dr. Levine's request.

Applicant reported memory issues and Dr. Levine found evidence of memory problems, which raised questions about the adequacy of the medical-legal report and the appropriateness of communication with applicant's daughter.

From the decision · page 9Applicant reported that she had memory issues, and Dr. Levine also found evidence of memory problems. (Jt. Ex. 1, pp. 3, 6, 57.) Yet, we do not have an adequate record to evaluate whether it was appropriate for the medical-legal evaluator to interview the person most knowledgeable about the employee to supplement the employee's history and symptoms as reported by the employee during the examination.