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JULY 2011 NEWSLETTER
IMPROPER EX PARTE COMMUNICATION WITH A MEDICAL
EXAMINER BARS CLAIM FOR HOME CARE SERVICES
The husband of a disabled workers’ compensation applicant provided home care services and sought compensation as a lien claimant. The husband had ex parte communications with a medical examiner appointed by the WCJ to render findings on applicant’s past and present life care needs, including the reasonableness of the husband’s services and charges. Counsel for applicant and lien claimant contacted the medical examiner and provided her with several medical reports without giving notice to the insurance carrier , State Farm. State Farm moved to exclude the medical examiner’s report because of the ex parte communications by lien claimant and applicant’s attorney.
Normally, ex parte communications with medical examiners are not allowed. The WCJ struck the report and, pursuant to Labor Code Section 5701, ordered that a new mutual submission of medical records be provided to the medical examiner, and State Farm deposed her.
Later, State Farm argued the new findings should be stricken because the medical examiner’s findings were “tainted” by the initial ex parte communication. The medical examiner found that home care services were reasonable and needed to be provided to applicant.
The Workers’ Compensation Appeals Board (WCAB) found the medical examiner’s findings were admissible, and there was no “taint” because State Farm had the opportunity to submit medical reporting and depose the medical examiner. State Farm requested review by the Court of Appeal.
The Court of Appeal reversed the WCAB’s decision, reasoning that the prohibition of ex parte communications in medical examiner appointments per Labor Code Section 5701 is a “strict rule” with no exceptions for “administrative” or procedural communications. The Court of Appeal held that a new medical examiner must be appointed to address the expenses for medically necessary treatment for which State Farm is liable, and to recalculate the proper rate of reimbursement.
State Farm Ins. Co. v. Workers’ Comp. Appeals Bd., 192 Cal. App. 4th 51 (2011)
