Rodriguez: Improper Service of an AME Letter Required a New Evaluator

A letter asking an agreed medical evaluator for a supplemental opinion can become an improper private communication when the other side is not properly served—even if the sender tried to mail a copy. In Aura Rodriguez v. Montebello Unified School District, the WCAB found that mailing to counsel’s business address, rather than the mailing address in the Official Address Record, entitled the applicant to a new evaluator. It did not find bad faith or award sanctions. The treatment of costs was narrower and requires attention to the opinion’s discussion, not an assumption that replacement automatically pays every expense.

What was sent, and why the address mattered

The applicant claimed four injuries while employed by a school district. The parties used an agreed medical evaluator, who had issued four reports and been deposed. The defendant then requested a supplemental report about maximum medical improvement, restrictions and the applicant’s ability to return to her usual work. These were substantive medical questions, not appointment scheduling. The defendant mailed the proposed letter to an address appearing on counsel’s pleadings. Counsel, however, had specified a different mailing address; the business address was not the address in EAMS’s Official Address Record, and counsel had expressly rejected service there by mail. Rodriguez, opinion at 2, 6–7.

The workers’ compensation judge found no ex parte communication and declined to replace the evaluator. The applicant sought removal, arguing that the defendant had failed to serve the supplemental-report request at the proper address. The WCAB disagreed with the judge about service and rescinded the findings and order.

Why reconsideration and the removal standard both appeared

The challenged order also contained findings of employment. That made it a final, or hybrid, order for reconsideration purposes even though the applicant challenged only its nonfinal medical-evaluator ruling. The Board therefore treated the petition as one for reconsideration but applied the more demanding removal standard to the challenged procedural issue. Those are separate inquiries: The order determines the review route; the issue challenged determines the applicable showing. Rodriguez, opinion at 4–5.

Removal requires substantial prejudice or irreparable harm and a showing that reconsideration after a later adverse final decision would not provide an adequate remedy. The panel concluded that the improper communication implicated due process and supplied substantial prejudice. It did not announce that every mailing mistake meets that standard.

The communication rule was about actual service

Labor Code section 4062.3(f), quoted in the decision, requires written communications with an AME to be served on the opposing party when sent to the evaluator. It distinguishes nonsubstantial matters such as scheduling from communications about the merits. The panel also applied WCAB Rule 10625’s service requirements and the Official Address Record under Rule 10205.5. Rodriguez, opinion at 6–7.

Writing the other lawyer’s name on a copy did not settle compliance. The defendant selected mail, but did not use the recorded mailing address or an agreed alternative. Counsel’s correspondence accepted electronic service, yet the defendant did not use that method. On these facts, the panel found an ex parte communication and emphasized that the applicant objected promptly after learning of it. The decision does not give a party permission to wait, see whether an opinion is favorable, and then seek replacement.

Replacement, sanctions and costs were different questions

The panel concluded that the applicant was entitled to a new evaluator. It nevertheless rejected sanctions because the record showed an apparently inadvertent, technical violation rather than frivolous conduct or bad faith. A service violation and sanctionable misconduct therefore should not be described as equivalent findings. Rodriguez, opinion at 7.

Costs require particular care. The opinion discussed possible attorney’s fees under section 4062.3(h), leaving adjustment initially to the parties and reserving trial-level jurisdiction if they disagreed. It did not make a present monetary award; its concluding language also denied the petition for sanctions and/or costs. The accurate practical takeaway is that the applicant obtained the replacement ruling, not an adjudicated fee amount or an automatic entitlement to every claimed cost. The substituted findings and operative order appear at pages 7–9.

What the decision establishes—and what it leaves open

This January 12, 2026 panel decision is citable for persuasive reasoning, not binding precedent on other WCAB panels or judges. It resolved the communication dispute, not whether every claimed injury was compensable or what benefits were owed. There was no separate opinion changing the panel’s result.

For a comparable dispute, preserve the exact letter, its attachments, the address record then in effect, service instructions, mailing proof, delivery information and the first objection. Those documents show whether the problem concerns the substance sent, the recipient, the selected service method or a later attempt to change an unfavorable evaluator. Our AME mailing-address guide addresses that practical assessment; our broader medical-evaluator communications guide addresses records and advocacy letters.