Prohibited ex parte communication with an agreed medical examiner

This case stands for the proposition that a party shall serve upon opposing party at least 20 days before the information is to be provided to an evaluator the medical reports, non-medical reports and other information they plan on providing to the evaluator. If the other party objects to “other information” being shown to the evaluator within 10 days the “other information” cannot be shown to the evaluator without order of the court.

Martin Trapero v. North American Pneumatics, State Compensation Insurance Fund, (W/D) (77 CCC 183 )

The applicant’s attorney handed a recently-procured vocational evaluation report to defense counsel a few minutes prior to AME’s deposition and presented the report to AME during deposition. The defendants objected to the report being presented to the AME at the deposition.

The defendants moved for a new AME based on the ex-parte communication and the WCJ denied the motion.

The WCAB granted removal on its own motion and rescinded WCJ’s finding. The WCAB held that the applicant’s attorney violated Labor Code § 4062.3 and subdivision 35(c) of Title 8 of the California Code of Regulations because (1) the vocational reports fell within the definition of “information” described in Labor Code § 4062.3, as it was a “non-medical record relevant to determination of a medical issue” under Labor Code § 4062.3(a)(2), (2) under Labor Code § 4062.3(c), the parties must agree on what information is provided to the AME and by springing the vocational report on defense counsel when the AME was about to be deposed deprived defense counsel of opportunity to determine if he would agree to provide this information to the AME, and (3) the vocational report should not have been provided to the AME during the deposition, because defense counsel objected to provision of this “information”. The WCAB granted defendants’ motion for a new AME based on the ex-parte communication

Subdivision 35 of Title 8 of the California Code provides (c) that at least twenty (20) days before the information is to be provided to the evaluator, the party providing such medical and non-medical reports and information shall serve it on the opposing party.

Subdivision 35 of Title 8 of the California Code provides (d) If the opposing party objects within 10 days to any non-medical records or information proposed to be sent to an evaluator, those records and that information shall not be provided to the evaluator unless so ordered by a Workers’ Compensation Administrative Law Judge.

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