PROCEEDINGS to review a decision of the Workers' Compensation Appeals Board. Anulled and remanded. (W.C.A.B. Nos. ADJ3636557, LAO0863476).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
In a denied workers' compensation claim for death benefits, a panel qualified medical evaluator (Lab. Code § 4062.2)*fn1 requested a copy of certain records in an ex parte telephone conversation with defense counsel. The claimant objected to the ex parte communication and petitioned, inter alia, for a new panel qualified medical evaluator under section 4062.3, subdivision (f), which prohibits ex parte communications between a party and a panel qualified medical evaluator and, in the event of a violation, allows the other party to seek a new panel qualified medical evaluator from another panel. The Workers' Compensation Appeals Board (WCAB) denied the petition, reasoning that the ex parte communication was initiated by the panel qualified medical evaluator and not a party, and involved administrative and not substantive matters or the merits of the claim.
The claimant petitioned for writ of review, contending that section 4062.3, subdivision (f) explicitly precludes any ex parte communication between a panel qualified medical evaluator and a party and that the WCAB may not add an exception not contained in the statute. Petitioner also asserted that the failure to enforce the prohibition against the ex parte communications denied him due process of law and was not based on substantial evidence. We hold that section 4062.3 expressly prohibits ex parte communications with a panel qualified medical evaluator, with the only exception being for communications by the employee or deceased employee's dependent in connection with an examination, and in the event of unauthorized ex parte communication permits the aggrieved party to obtain a new evaluation from another panel qualified medical evaluator. We therefore annul the WCAB's decision and remand the matter to the WCAB.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Andromeda Entertainment, Inc. conducted business under the name Galaxy Ballroom. Maria Parades was a waitress for Galaxy Ballroom. She died from intracerebellar hemorrhage and hypertension on September 21, 2005. Carlos Alvarez (Alvarez or petitioner), her widower and guardian at litem of their two minor children, filed a claim for workers' compensation death benefits, alleging that Parades's death was caused by her work. The workers' compensation insurer, State Compensation Insurance Fund (Fund), denied the claim.
Donald Miller, M.D., was selected as a panel qualified medical evaluator pursuant to section 4062.2.*fn2 Dr. Miller issued a medical report dated September 20, 2008.
On December 4, 2008, Dr. Miller testified in his deposition that medical records indicated that Parades suffered from stress, severe headaches, and possible initial cerebral bleeding approximately three months before her death, and that one of Parades's sisters had said that a possible source of Parades's stress was the alleged sexual abuse by Alvarez of his daughter that had resulted in a restraining order against Alvarez. Dr. Miller, however, could not specify the medical record or cite the page that contained the sister's statement. Dr. Miller testified that he may have obtained from an "investigative report" or "background report" information that one of Parades's sisters had never heard Parades complain of harassment at work, but apparently Dr. Miller's medical report did not identify any investigative or background report as one of the documents he received or upon which he relied. Dr. Miller said that the report "may be... put away with all these records there on the side," and that he "would have to go through that whole stack." Dr. Miller could not identify his source of information in the "Review of Medical Records" section of his report, which summarized 635 pages of records sent to him by the defense attorney or insurance company. Dr. Miller said he would be willing to review and clarify the records he had received or relied upon as required by section 4062.3, subdivision (d), including eight pages described only as "miscellaneous records".*fn3
On December 5, 2008, Dr. Miller telephoned the attorney for the Fund who had attended Dr. Miller's deposition. Dr. Miller stated that the records could not be located and requested another copy.
In a letter dated the same day, defense counsel wrote opposing counsel that, at the conclusion of Dr. Miller's deposition, the parties and Dr. Miller had agreed that Dr. Miller "would more specifically describe the 635 pages of records he testified he reviewed, as he believed he still had them. However, I just received a brief telephone call from Dr. Miller who stated that the records have not been found and presumably were shredded by his staff after his review." Defense counsel suggested that the records would have to be resent if the parties desired more specificity, and that the adjuster should be contacted directly.
In a letter dated December 9, 2008, counsel for Alvarez responded that defense counsel had "clearly violated the Labor Code by having an ex parte conversation with the Panel QME." Alvarez subsequently filed a petition objecting to the ex parte communication between Dr. Miller and defense counsel. Alvarez requested that Dr. Miller's report be stricken; that a new panel qualified medical evaluator be selected; and that penalties and sanctions be imposed, including costs and attorney's fees under sections 4062.3 and 5813.*fn4
At trial, defense counsel testified that Dr. Miller called on her direct line and advised that his office could not locate some records previously sent. Defense counsel testified further that telephone calls from doctors are not customary, and it took a "couple of beats" to identify the caller. Defense counsel's practice is to terminate an inappropriate call as soon as possible. When defense counsel realized who was calling, she terminated the call as soon as possible. She testified that the call lasted less than one minute. Defense counsel informed Dr. Miller that counsel for Alvarez would be contacted to see how getting another copy of records to the doctor should be handled. Defense counsel said to Dr. Miller that he should not be calling directly. According to defense counsel, Dr. Miller only requested medical documents that Dr. Miller's office could not locate, and there was no discussion about the merits of the case or anything else. Immediately after the call, defense counsel sent a letter to opposing counsel referring to the conversation and stating that as a result, if opposing counsel desired more specificity, the documents would have to be resent to Dr. Miller and that opposing counsel should contact the adjuster.
The workers' compensation administrative law judge (WCJ) issued Findings And Order that there was no improper ex parte communication between defense counsel and the panel qualified medical evaluator in violation of section 4062.3. The WCJ also denied Alvarez's petition to strike Dr. Miller's report and request for penalties and sanctions. In his opinion, the WCJ explained that the Findings And Order were based on the credible and unrebutted testimony of defense counsel.
Alvarez petitioned the WCAB for reconsideration, contending that the Dr. Miller's ex parte conversation with defense counsel regarding the records violated the express provisions of section 4062.3. Alvarez contended further that the WCJ exceeded his authority by adding exceptions to the plain language of section 4062.3, which prohibits all ex parte communications with the panel qualified medical evaluator, unless by the employee or employee's dependent if the employee is deceased, in connection with an examination. Alvarez noted that the new qualified medical evaluator regulations also prohibit all ex parte ...