Court of Appeal Grants Rehearing In Harsh Alvarez Ex Parte Communication Ban Case
June 16, 2010
Good news for the comp community thrown into an almost terminal tizzy by the surprisingly strict and unbending Second District Court of Appeal decision in Alvarez v. WCAB, certified for publication on May 14, 2010 (No. B218847, 38 CWCR 107). Unexpectedly, on June 11, 2010, the Court of Appeal panel has granted a rehearing to the defendants in the case. That nullifies the prior opinion.
The appellate court had made a rigid pronouncement that all ex parte communications by any party with a QME or AME are strictly forbidden by Labor Code section 4062.3(f), regardless of who initiated the communication and whether it dealt with substantive or procedural issues. The opposing party could immediately ask for a new evaluator and seek sanctions against the party communicating with the physician. In its Petition for Rehearing, State Compensation Insurance Fund, the defendant carrier, argued that the California compensation system is governed by a degree of informality that does not exist in the more formalistic civil court system. That informality is meant to help accomplish the constitutional goal of providing substantial justice as expeditiously as possible. Delay and added expense in obtaining a new AME or PQME, as mandated by the court's holding, is inappropriate on this set of facts.
More importantly perhaps was the argument that there does need to be prejudice shown as resulting from the ex parte communication to allow for a new evaluation to occur. The statute specifically says that the party who demands a new evaluation must be aggrieved by the ex parte communication. That requires a showing of prejudice. There was none shown here. The Appeals Board had made a finding that there was no prejudice in this particular communication and the Court of Appeal was not justified in usurping the Board's authority to make that finding of fact.
The defense now has a ticket for a rematch. Hopefully the Court of Appeal will listen to reason this time around.
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