What the panel ordered
Petition for removal granted; December 12, 2023 F&O rescinded; replacement panel of QMEs ordered; July 22, 2023 QME report stricken from evidence.
Defendant petitioned for removal of the December 12, 2023 WCJ Findings of Fact and Order denying replacement of the QME due to alleged impermissible ex parte contact by applicant.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The applicant's email to the QME constituted impermissible ex parte contact under Labor Code section 4062.3, requiring replacement of the QME panel to preserve impartiality and the appearance thereof. The WCAB rejected the applicant's argument that the QME did not actually receive or review the email, emphasizing that prejudice need not be shown and the appearance of impartiality is crucial.
From the decision · page 2(Minutes of Hearing, dated December 4, 2023, at p. 2:12.) The parties proceeded to trial on December 4, 2023 and framed for decision the sole issue
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sent an email to the QME on June 25, 2023 without copying defendant.
Favours Defendant prevailed
This constituted impermissible ex parte contact under Labor Code section 4062.3, justifying replacement of the QME panel to preserve impartiality.
From the decision · page 7Here, the parties have stipulated that applicant sent an email to the office of the QME on June 25, 2023 at 4:15 p.m., and did not transmit a copy of the communication to the opposing party. (Lab. Code, § 4062.3(e),(g).) There is no colorable assertion that the exception for direct communications made during the course of the QME evaluation are applicable on these facts. (Lab.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Issued two reports and testified at deposition prior to the ex parte contact; the July 22, 2023 report issued after the ex parte contact was stricken from evidence to preserve impartiality.
The July 22, 2023 report was stricken to preserve the appearance of impartiality and legitimacy of the medical evaluation process after the ex parte contact.
From the decision · page 9We remain mindful of the reasoning of the court of appeal in Alvarez, supra, that the legislature's intent underlying section 4062.3(g) is to preserve the appearance of impartiality. (Alvarez, supra, 187 Cal.App.4th 575, 589.) Here, Dr. Weiss issued two reports and testified at deposition testimony prior to the ex parte contact of June 25, 2023, and we discern no compelling reason to strike these reports from evidence. However, we believe it necessary to strike the QME
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4062.3
Labor Code section 4062.3 prohibits ex parte communications with QMEs and mandates that all communications be served on the opposing party when sent to the medical evaluator.
The applicant's email was an ex parte communication proscribed by section 4062.3(g), requiring replacement of the QME panel.
From the decision · page 8Code, § 4062.3(i).) Accordingly, applicant's email was ex parte contact proscribed by section 4062.3(g).
What proof carried it
The evidence the panel weighed, by kind.
Applicant sent an email to the QME on June 25, 2023 without copying defendant, constituting impermissible ex parte contact.
From the decision · page 7Here, the parties have stipulated that applicant sent an email to the office of the QME on June 25, 2023 at 4:15 p.m., and did not transmit a copy of the communication to the opposing party. (Lab. Code, § 4062.3(e),(g).) There is no colorable assertion that the exception for direct communications made during the course of the QME evaluation are applicable on these facts. (Lab.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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