Suon v. California Dairies, 102318 CAWC, ADJ9013590

• Case Date: October 23, 2018
• Court: California

SANDAB SUON, Applicant, v. CALIFORNIA DAIRIES; INSURANCE COMPANY OF THE WEST; THE HARTFORD; STARR INDEMNITY AND LIABILITY INSURANCE COMPANY, Defendants. Nos. ADJ9013590, ADJ9014316, ADJ9489408 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California October 23, 2018          (Fresno District Office)           OPINION AND ORDERS VACATING ORDER GRANTING RECONSIDERATION, DISMISSING PETITION FOR RECONSIDERATION, GRANTING PETITION FOR REMOVAL AND DECISION AFTER REMOVAL (EN BANC)           KATHERINE A. ZALEWSKI, Chair.          Reconsideration was granted on June 1, 2018 in order to further study the factual and legal issues in this case. Reconsideration was only granted with respect to ADJ9489408. This Opinion includes all three of applicant’s claims since they were previously consolidated.1          To secure uniformity of decision in the future, the Chair of the Appeals Board, upon a unanimous vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision.2 (Lab. Code, § 115.)^[3]          On March 8, 2018, a workers’ compensation administrative law judge (WCJ) issued a Findings of Fact, Order and Opinion on Decision (Findings), which found, in relevant part, that defendant, The Hartford, provided medical information to the internal medicine panel qualified medical evaluator (QME) without first serving applicant and engaged in ex parte communication with the QME in violation of Labor Code sections 4062.3(b) and 4062.3(e). (Lab. Code, § 4062.3(b) & (e).) The WCJ ordered the parties to obtain a new QME panel in internal medicine or agree to an internal medicine agreed medical evaluator (AME).          In response to the Findings, defendant, ICW, sought reconsideration, and in the alternative, removal of the case to the Appeals Board. ICW contends that the issue of ex parte communication with the QME was not one of the issues identified at trial and The Hartford’s correspondence to the QME was not an “ex parte” communication as described in section 4062.3. ICW also contends that The Hartford’s correspondence to the QME was not “information” as described in section 4062.3 and ICW should not be penalized for a co-defendant’s conduct.          We received an answer from applicant. The WCJ filed a Report and Recommendation on Petition for Reconsideration (Report) recommending that reconsideration be denied.          Based upon our review of the record, ICW’s Petition, applicant’s answer, the contents of the WCJ’s Report, and the relevant statutes and case law, we hold as follows:

1. Disputes over what information to provide to the QME are to be presented to the WCAB if the parties cannot informally resolve the dispute.

2. Although section 4062.3(b) does not give a specific timeline for the opposing party to object to the QME’s consideration of medical records, the opposing party must object to the provision of medical records to the QME within a reasonable time in order to preserve the objection.

3. If the aggrieved party elects to terminate the evaluation and seek a new evaluation due to an ex parte communication, the aggrieved party must do so within a reasonable time following discovery of the prohibited communication.

4. The trier of fact has wide discretion to determine the appropriate remedy for a violation of section 4062.3(b).

5. Removal is the appropriate procedural avenue to challenge a decision regarding disputes over what information to provide to the QME and ex parte communication with the QME.

         For the reasons discussed below, we will grant ICW’s Petition as one for removal, rescind the Findings and return this matter to the trial level for further proceedings consistent with this opinion.          FACTUAL BACKGROUND          Applicant has filed three claims for injury while employed as a machine operator by California Dairies to the following body parts with their respective dates of injury (as pled): the right shoulder, stress, sleep, legs, and feet on February 28, 2012 (ADJ9013590); the right shoulder, neck, head, sleep, psyche, heart, legs and feet through June 27, 2013 (ADJ9014316); and the circulatory system and heart through January 5, 2010 (ADJ9489408).          On March 11, 2015, an Order for Additional QME Panels in internal medicine/cardiovascular and psychiatry was issued. The Order stated all three case numbers.          Applicant’s three cases were ordered consolidated and ADJ9014316 was designated the master file at a status conference on May 13, 2015. ICW was also joined as a party defendant to ADJ9489408 at the conference over its objection. ICW has denied this claim for purported lack of coverage for the employer at the time of injury. (Defendant’s Exhibit F, Notice of Denial of Claim, April 7, 2015, p. 1; Defendant’s Exhibit G, Notice of Denial of Claim, April 2, 2015, p. 1.)          Robert Weber, M.D., acted as the internal medicine panel QME and evaluated applicant on August 3, 2015. (Applicant’s Exhibit No. 1, QME Report of Robert Weber, M.D., August 3, 2015, p. 1.) In his report, Dr. Weber opined as follows regarding causation:

Given his well-documented, multiple, major risk factors for coronary heart disease and absent any history that Mr. Suon provided with respect to potential contributing factors of a work-related nature, such as having experienced frequent and chronic emotional stress, it is my opinion based upon reasonable medical probability that causation of Mr. Suon’s coronary artery disease and small myocardial infarction of September 2009 was nonindustrial.

(Id. at p. 48.)          Applicant cross-examined Dr. Weber on February 10, 2016. (Applicant’s Exhibit No. 3, Deposition Transcript of Robert Weber, M.D., February 10, 2016.) During his testimony, Dr. Weber consented to review a psychiatric QME report regarding stressful activities or events at work. (Id. at pp. 16:10-16, 17:5-17, 35:1-12.)          Robindra Paul, M.D., was the psychiatric panel QME in ADJ9013590 and evaluated applicant on January 26, 2016 and February 24, 2016, with his report issuing on March 16, 2016. (Defendant’s Exhibit N, Report of Robindra Paul, M.D., March 16, 2016, p. 2.)          On April 19, 2016, Mr. Jeremiah Paul,4 representing The Hartford, sent a letter to the internal QME Dr. Weber enclosing a copy of Dr. Paul’s March 16, 2016 report. The letter stated, in pertinent part:

In your recent deposition, you requested the opportunity to review applicant’s psych QME reporting in order to finalize your opinion as to causation. Enclosed, please find the March 16, 2016 report of Psychiatric Qualified Medical Examiner Dr. Robindra Paul.

Please review Dr. Paul’s report and issue a supplemental report as to how your opinion may have changed, if at all.

(Applicant’s Exhibit No. 22, Correspondence to Robert Weber, M.D., April 19, 2016.) The letter lists applicant’s attorney, Mr. Bryan Leiser, as one of the copied parties, but only states his name, not his address. (Id.) No proof of service of the letter is in evidence.          On April 20, 2016, a priority conference took place at which the WCJ ordered an additional QME panel in psychiatry for ADJ9489408. ICW petitioned for removal of the order for an additional panel on May 13, 2016. In response, the WCJ issued an order vacating the order for an additional panel on May 31, 2016, and indicated that the matter would be set for a status conference.          Dr. Weber issued a report dated August 31, 2016 reflecting his receipt and review of Dr. Paul’s March 16, 2016 report. (Applicant’s Exhibit No. 2, Report of Robert Weber, M.D., August 31, 2016.) Dr. Weber’s opinion remained “as expressed” in his previous report. (Id. at p. 3.)          Mr. Leiser sent a letter to Mr. Paul on September 20, 2016, advising that ICW’s counsel had informed him of the request for a supplemental report from Dr. Weber regarding Dr. Paul’s opinions and contending that he did not have any correspondence from Mr. Paul addressed to Dr. Weber. (Applicant’s Exhibit No. 20, Correspondence to Defense attorney, September 20, 2016, p. 1.) Mr. Leiser subsequently sent a second letter to Mr. Paul on October 4, 2016, confirming receipt of Dr. Weber’s August 31, 2016 report and reiterating that he was not provided with a copy of the letter sent by Mr. Paul to Dr. Weber. (Applicant’s Exhibit No. 21, Correspondence to Defense attorney, October 4, 2016, p. 1.)          The matter ultimately proceeded to trial on January 4, 2018 on the following issues: the status of Dr. Paul as the psychiatric QME, whether Dr. Terrell is the PQME in...