August 13, 2010
Rather than decisively mitigating the harsh effects of its prior holding, the Second District Court of Appeal muddied its opinion on rehearing in Alvarez v. WCAB, which was certified for publication on August 12, 2010 (No. B218847).
To the dismay of comp practitioners throughout the state, the Appellate Court reaffirmed its rigid pronouncement that Labor Code section 4062.3 expressly prohibits all ex parte communications with a QME or AME. Indeed, throughout the majority of its 16-page opinion, the Court emphasized that ex parte communications are strictly prohibited, with no exceptions based on the initiator of the communication or whether it dealt with administrative or procedural issues.
However, the Court acknowledged that a certain amount of "informality" is anticipated in workers' compensation proceedings and, thus, not every imaginable ex parte communication warrants a new evaluation with a different evaluator. At first glance, this would seem to dilute the harshness of the opinion and inject an additional tier of analysis with regard to ex parte communications: whether the communication is so inconsequential as to render any resulting repercussion unreasonable.
This exception seems more effective in theory than in practice, though, in light of the replete inconsistencies and ambiguities in the Court's opinion. For instance, the Court initially chastised the WCAB for creating exceptions regarding the source of the communication and the issues discussed. However, the Court later contradicts itself by opining that an evaluator's ex parte communication might be so inconsequential so as to render any resulting repercussion unreasonable.
At best, the Court strikes a tenuous balance between a strict prohibition against all ex parte communications, and a loose exception for insignificant communications, thereby further muddying an already challenging issue for litigants.
The Court remanded the matter to the WCAB to reevaluate its conclusion based on the notions it espoused. It will be interesting to see how the WCAB implements these ill-defined principles.