Suon: The Report Reached the Doctor. Did the Letter Reach the Lawyer?

Your medical evaluator’s opinion can decide your claim. Then you learn that the other side sent that doctor something after the exam, and that nobody sent it to you first. It feels like cheating. The harder question is what you can do about it, and how fast you have to do it.

That was the dispute in Suon v. California Dairies, 83 Cal.Comp.Cases 1803, Nos. ADJ9013590, ADJ9014316, ADJ9489408 (WCAB en banc Oct. 23, 2018). The decision is en banc, which binds all Appeals Board panels and workers’ compensation judges. The Workers’ Compensation Appeals Board separated two problems that are easy to merge. A secret communication with the evaluator gives the wronged party, here the worker, a choice to start over with a new one, but the choice must be made in a reasonable time. Sending medical records without 20 days’ notice is a different violation, and a judge has wide discretion over the remedy. Neither leads automatically to a new doctor. The Board set aside the judge’s order and sent the case back to decide what actually happened and what remedy, if any, fits.

A heart attack, a doctor and a second report

Sandab Suon, a machine operator at California Dairies, filed three claims with different injury dates. Two involved his heart. Three insurers were named across the claims: The Hartford, Starr Indemnity and Liability Insurance Company, and Insurance Company of the West. Insurance Company of the West was joined in one claim over its objection and denied that claim, saying it did not cover the employer at the time of injury.

Dr. Robert Weber, the internal medicine panel qualified medical evaluator, or QME, examined him on August 3, 2015. A panel QME is a doctor drawn from a state list to answer disputed medical questions. Dr. Weber concluded that Suon’s coronary artery disease and 2009 heart attack were nonindustrial, in part because Suon had given him no history of work-related contributing factors such as chronic emotional stress.

That gap mattered. At a deposition in February 2016, Dr. Weber agreed to review a psychiatric QME’s report about stressful events at work. A psychiatric QME, Dr. Robindra Paul, issued a report that March 16.

On April 19, 2016, The Hartford’s lawyer sent that report to Dr. Weber and asked for a supplemental report. The letter listed Suon’s attorney, Bryan Leiser, as copied, but gave only his name and no address. There was no proof of service in evidence. Dr. Weber’s August 31 report showed he had read the psychiatric report, and his opinion stayed “as expressed.”

On September 20, 2016, Leiser wrote that Insurance Company of the West’s counsel had told him about the request for a supplemental report and that he had no correspondence to Dr. Weber. On October 4 he confirmed receiving the August 31 report and repeated that he had not been given the letter. In March 2018 a judge found that The Hartford had violated Labor Code section 4062.3, and ordered the parties to obtain a new internal medicine panel or agree on an evaluator, without Dr. Weber’s reports or deposition.

Insurance Company of the West, which had not sent the letter, asked the Board to review the ruling. It argued that ex parte contact was not an issue at trial, that the letter was neither ex parte nor “information,” and that it should not be penalized for a co-defendant’s conduct. The Board rejected the first point: A trial issue about whether Dr. Weber had been “tainted” was broad enough to cover ex parte contact.

Two rules, two questions

Section 4062.3 treats two things differently. The Board relied on its earlier decision in Maxham for the distinction.

“Information” means records: a treating doctor’s records and other medical and nonmedical records relevant to the medical issue. Under subdivision (b), information must be served on the other side 20 days before it goes to the evaluator.

A “communication” is what a party sends to the evaluator. Under subdivision (e), it has to be in writing and served on the other side, 20 days ahead of the examination if sent before it, or when sent if it comes afterward. Subdivision (g) prohibits ex parte communication, which is contact by one side without the other. And a communication can itself count as information if it contains, references or encloses records.

A single envelope can raise both questions, and this one did. The cover letter came after the exam, so it needed service when sent. The Board said the letter might also count as information because it referred to the report, but it did not need to decide that, because the enclosed report was “indisputably information.” Two separate duties applied.

“Was it served?” is a question of proof

The trial judge called the letter ex parte because Leiser did not receive a copy. The Board called the record unclear. A letter properly served on the other side is not ex parte. Service is a question of fact, and it needs evidence.

The parties disagreed about what the “copied” line meant. The Board pointed to WCAB Rule 10505(d), as it read when the Board decided the case. Under it, proof of mail service could be a declaration, a signed statement on the document or a letter of transmittal, and it had to show names, addresses, the fact of mail service, the date and where it was sent. The Board did not decide whether this letter met the rule. In our view, a line with a name and no address is weak evidence of service.

Service and receipt are separate. Mail service is complete when the document is deposited in the mail, and evidence of proper service shows the sender complied. If the other side says the information never arrived, the judge may still consider that in deciding whether equitable relief is warranted. A letter correctly addressed and properly mailed is presumed received. If the sender shows mailing, the recipient must produce believable contrary evidence, and a bare claim of non-receipt has been held insufficient. If the recipient does that, the presumption disappears and the judge weighs the two accounts. Here the Board could not tell whether the letter was “properly served and received” at all, so the parties would get to present more evidence.

The report needed 20 days’ notice

The second question did not depend on any of that. Whether or not the cover letter reached Leiser, there was no evidence the psychiatric report had been served 20 days before it went to Dr. Weber. Leiser’s later objection indicated the parties had not agreed to send it. In sending the case back, the Board said there “appears to be no dispute” that the 20 days did not happen.

The Board explained what the 20 days are for. They give the parties time to review what is proposed and agree. Sending the material without notice takes away that chance. The Board also held that disputes over what the evaluator may see go to the workers’ compensation judge if the parties cannot resolve them informally. A party asking for a hearing must swear it made a genuine good-faith effort, and the judge may weigh those efforts.

Nonmedical and medical records are treated differently. If a party objects to nonmedical records within 10 days, those records do not go to the evaluator unless the judge orders otherwise. For medical records, the statute says nothing about what an objection does, so the Board filled the gap.

Objecting late can cost you the objection

A party must object to medical records within a reasonable time. Failing to object at the first opportunity may be read as implicit agreement. The Board gave a practical reason: Waiting lets a party see what the information does to the doctor’s opinion before deciding whether to complain.

The same logic applies to the secret-contact remedy. A party who wants to end the evaluation must act within a reasonable time after discovering the contact. Conduct inconsistent with ending the evaluation can forfeit the right. And doing nothing is treated as a decision: “Inaction by the aggrieved party following discovery of the ex parte communication is in effect an election to proceed with the QME.”

The test is a reasonable time. The Board did not decide whether Suon’s side moved quickly enough. That is one of the questions left for the trial judge.

Why a new doctor was not automatic

Only the ex parte violation gives a party a right, written into the statute, to choose a new evaluator. Subdivision (g) says the aggrieved party “may elect to terminate” the evaluation. As the Court of Appeal said in Alvarez v. Workers’ Compensation Appeals Board, 187 Cal.App.4th 575 (2010), which the Board quoted, the impartiality of the panel evaluator is “critical,” though the same court said a contact may be too inconsequential to justify a repercussion. And “may” is permissive. The new evaluation comes only if the aggrieved party chooses it in time.

The Labor Code provides no specific remedy for a subdivision (b) violation. The judge has wide discretion, and the Board listed six factors a judge may consider, among others, as relevant:

• The prejudicial impact of the information compared with its probative weight.
• The reasonableness, authenticity and relevance of the information.
• The timeline, including proof of service, attempts to cure, disputes about receipt and when the objection came.
• Case-specific reasons to replace or keep the evaluator, including how long the doctor has been on the case.
• Whether the parties made good-faith efforts to agree.
• The constitutional mandate to accomplish substantial justice expeditiously, inexpensively and without encumbrance.

A new evaluator is one possible result. The judge may also order something else, or both. The Board did not apply these factors itself; that is the trial judge’s job. In our reading, the judge may look at two facts in the record: At his deposition, Dr. Weber agreed to review a psychiatric evaluator’s report, and his opinion stayed “as expressed” after he read Dr. Paul’s.

The wrong petition, and the right one

Reconsideration asks the Board to review a judge’s final decision, one that resolves a substantive right or a threshold issue fundamental to the claim. Removal asks the Board to take up the case before a final decision, and it is an extraordinary remedy. It requires substantial prejudice or irreparable harm, and a showing that reconsideration later would not be adequate. Insurance Company of the West had asked for reconsideration and, in the alternative, removal.

The Court of Appeal had held in Capital Builders Hardware, Inc. v. Workers’ Compensation Appeals Board (Gaona), 5 Cal.App.5th 658 (2016), that an ex parte dispute with a QME is not a threshold issue, because resolving it does not avoid further litigation. The judge’s order here settled only which evaluators would be used. The Board held removal is the proper route. It vacated its earlier grant of reconsideration and dismissed that petition. It granted removal because the unclear record kept it from deciding whether Insurance Company of the West would suffer prejudice. Having asked for removal in the alternative, the insurer did not lose its challenge.

What the judge must decide now

The Board rescinded the findings and returned the case. In a footnote, it said it was not disturbing the judge’s determination that Suon could not get another psychiatric evaluator panel in one claim. On remand, the path runs in order. First, take evidence on whether the April 19 letter was properly served and received. If it was an ex parte contact, decide whether Suon elected a new evaluation within a reasonable time. If it was properly served, decide what remedy, if any, fits the apparently undisputed failure to give 20 days’ notice of the report.

If you think something reached your evaluator

These steps are our practical reading of Suon.

• Read each report’s list of records. Dr. Weber’s supplemental report showed he had received and reviewed Dr. Paul’s report. Check every evaluator’s record review against what was served on you.
• Try to resolve it first, and keep the record. Then ask the judge to decide. Good-faith efforts may count.
• Object at the first opportunity. Nonmedical records carry a 10-day objection period after service. Medical records must be challenged within a reasonable time. A new evaluator after ex parte contact must be sought within a reasonable time after you discover the contact. Do not wait to see whether the doctor’s opinion moved in your favor.
• Decide about the evaluation deliberately. If you want a new evaluator after an ex parte contact, say so and act on it. Continuing with the same doctor can be taken as a choice to keep that doctor.
• Keep proof of what you did and did not receive. A dated letter saying you never got the document helps, but you may need more if the other side proves mailing.
• When you send records, serve them 20 days first, and keep proof. After the exam, a letter to the evaluator must be served when it is sent. A record enclosed with that letter still needs the 20 days.
• Use the right petition. Challenges to these rulings go by removal. Our suggestion is to ask for removal, at least in the alternative, and to show the substantial prejudice or irreparable harm the rule requires.

For representation in a dispute over a medical-legal evaluation, see our California workers’ compensation practice.