Sandab Duon filed three claims for injury while employed as a machine operator by California Dairies. Robert Weber, M.D., acted as the internal medicine panel QME and evaluated applicant on August 3, 2015. Robindra Paul, M.D., was the psychiatric panel QME.

On April 19, 2016, the Hartford representative sent a letter to the internal QME Dr. Weber enclosing a copy of Dr. Paul’s March 16, 2016 report in response to Dr. Weber’s request to see the psychiatric report during his deposition. The letter lists applicant’s attorney, Mr. Bryan Leiser, as one of the copied parties, but only states his name, not his address. No proof of service of the letter is in evidence.

Dr. Weber issued a report dated August 31, 2016 reflecting his receipt and review of Dr. Paul’s report. However, Dr. Weber’s opinion remained “as expressed” in his previous report.

The matter ultimately proceeded to trial. One of the issues was whether Dr. Weber as the internal medicine QME has been tainted based upon the provision of Dr. Paul’s reporting to him during the period of time that this issue was being disputed, and if so, is it sufficient to entitle the applicant to a new internal medicine panel.

The WCJ found that The Hartford, provided medical information to the internal medicine panel qualified medical evaluator (QME) without first serving applicant and engaged in ex parte communication with the QME in violation of Labor Code sections 4062.3(b) and 4062.3(e). (Lab. Code, § 4062.3(b) & (e).) and ordered the parties to obtain a new QME panel in internal medicine or agree to an internal medicine agreed medical evaluator (AME).

A co-defendant, Insurance Company of the West petitioned for reconsideration.The WCAB issued an en banc decision in the case of Sandab Suon v California Dairies; Insurance Company of The West; The Hartford; Starr Indemnity and Liability Insurance Company, interpreting Labor Code section 4062.3.

Section 4062.3(b) requires that “information” proposed to be provided to the QME “shall be served on the opposing party 20 days before the information is provided to the evaluator.” Section 4062.3(e) separately requires that “communications with a [QME] before a medical evaluation” must be served on the opposing party “20 days in advance of the evaluation.”

However, section 4062.3(e) further provides that “[a]ny subsequent communication with the medical evaluator “shall be served on the opposing party when sent to the medical evaluator.” The preliminary question is whether the documents or materials sent to the QME are “information” or “communication” as those terms are used in the Labor Code.

Whether a party properly served a written communication with the QME to the opposing party is a question of fact the determination of which must be supported by substantial evidence. In this matter, the evidence in the record is unclear whether Mr. Paul’s letter to the QME Dr. Weber was properly served and received by Mr. Leiser, and the matter will be returned to the WCJ to further address that issue pursuant to the discussion herein. If a communication was not ex parte, the trier of fact must decide if the documents or materials sent to the QME nonetheless constitute “information” subject to section 4062.3(b).

As a general rule, the WCAB determined that the following rules apply to a QME evaluation.

(1) Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute. The “meet and confer” provisions in the Civil Discovery Act are useful
(2) Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.
(3) If the aggrieved party elects to terminate the evaluation 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 trier of fact has wide discretion to determine the appropriate remedy for a violation of section 4062.3(b).
(5) Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME

.