I
his fee request for defendant's mistaken communication with the second PQME was for "related
2
discovery," as mandated by section
3 4
4 0 62 .3(g).
Applicant has filed an answer to defendant's petition.
Following our review of the record, and for the reasons set forth below, we shall rescind the Findings and Award and return this matter to the trial level for further proceedings.
5
1.
6
By Findings and Award issued January 29, 2008, applicant, Jose Ramirez, was found to have
7
sustained an industrial injury to his psyche on November 4, 2005, while employed as a parking lot
8
supervisor by Parking Concepts. The parties subsequently settled applicant's claim by Compromise and
9
Release Agreement for $8,000.00, approved on August 9,2011.
10
Defendant had initially contested applicant's claim of injury, but obtained no medical evidence to
11
counter the opinion of applicant's primary treating physician. Thereafter, defendant requested a PQME
12
and a panel list was sent to the parties. The first PQME was Dr. Anselen, who issued a report on August
13
1, 2008. Defendant sent an advocacy letter directly to the PQME in violation of section 4062.3(b) and
14
(e). Applicant later sent a copy of his objection letter to the PQME. Following a hearing a new panel was
15
ordered by the WCJ.
16
A second PQME was selected and the parties attempted to agree on a letter to be sent. Defendant
17
requested a hearing when the parties could not agree, but also sent its own advocacy letter in violation of
18
the rule against ex parte communications. The WCJ therefore ordered a third PQME. Prior to the end of
19
the ten day period provided in section 4062.2(c) for the parties to agree upon an Agreed Medical
20
Examiner, defendant served applicant's attorney with a "strike-out" letter eliminating one of the PQMEs
21
on the panel list. Despite defendant's error, the WCJ ordered applicant to be examined by the third
22
PQME.
23
Following the examination by the third PQME applicant objected to the fact that the first PQME
24
report was sent to the third PQME in violation of Administrative Director's Rule 35(e). The objection
25
was made after the examination but before the report was issued. Thereafter, applicant filed a request for
26
attorney fees under section 4062.3(g).
27
Following a trial, the WCJ awarded attorney fees but reduced the fee request from 96.4 hours to RAMIREZ, JOSE R.
2
1 2 3 4 5 6 7 8
78.1 hours, totaling $27,335.00. According to his Opinion on Decision, because defendant committed multiple violations of Rule 35 and sections 4062.2 and 4062.3, applicant's attorney is entitled to recovery for all of his related discovery costs. However, the WCJ reviewed the submitted list of hours and omitted reimbursement for items that were not related to discovery costs contemplated by Rule 35 and section 4062.3(g). In his Opinion on Decision the WCJ states the omitted costs "are not discovery costs resulting from Defendant's actions but fees based on unnecessary time expended on an incorrect legal theory resulting ultimately in the Decision of the Appeals Board dated 12 May 2011." He also omitted scanning and calendar entries which are part of the costs of doing business.
9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
II. Section 4062.3, subdivisions (e), (f) and (g) state: "(e) All communications with an agreed medical evaluator or a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator. "(f) Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited. If a party communicates with the agreed medical evaluator or the qualified medical evaluator in violation of subdivision (e), the aggrieved party may elect to terminate the medical evaluation and seek a new evaluation from another qualified medical evaluator to be selected according to Section 4062.1 or 4062.2, as applicable, or proceed with the initial evaluation." (g) The party making the communication prohibited by this section shall be subject to being charged with contempt before the appeals board and shall be liable for the costs incurred by the aggrieved party as a result of the prohibited communication, including the cost of the medical evaluation, additional discovery costs, and attorney's fees for related discovery. (Emphasis added.) The DWC QME Regulations Rule 35 provides specific rules for the provision of information and reports to Agreed Medical Examiners and Panel QMEs, and prohibits ex parte communications. Subdivision (k) of Rule 35, states: "If any party communicates with an evaluator in violation of Labor Code section 4062.3, the Medical Director shall provide the aggrieved party with a new panel in which to select a new QME..." In Alvarez v. Workers' Comp. Appeals. Bd (2010) 184 Cal.App.4th 860 [75 Cal.Comp.Cases
RAMIREZ, JOSE R.
3
1
397], the court held there were no exceptions to the clear statutory prohibition in sections 4062.2 and
2
4062.3 against ex parte communications with a PQME, noting that even a single violation initiated by a
3
QME can result in discipline. The absence of prejudice to a party from an ex parte communication "is not
4
a consideration," when determining whether a violation occurred.
5
Here the WCJ found defendant committed repeated violations of Rule 35 and sections 4062.2 and
6
4062.3, and ordered the chosen PQME to be replaced by a new PQME. We see no error in the WCJ's
7
conclusion that defendant's conduct was sufficient to trigger the attorney fee provision of section
8
4062.3(g).
9
Whether defendant's repeated violations were intentional or merely the result of carelessness, its
10
conduct caused delays and necessitated the selection of three PQMEs, entitling applicant's attorney to an
11
appropriate fee for his discovery related efforts. However, on this record we cannot determine whether
12
the $27,335.00 awarded by the WCJ based on 78.1 hours at $350.00 per hour is reasonable.
13
The effort for which applicant's attorney is entitled to reimbursement must be clearly established
14
to be related to discovery arising out of the need to obtain a new panel QME due to defendant's ex parte
15
communications. The itemization prepared by applicant's attorney covers work performed over four
16
years, but does not on its face establish a nexus between the prohibited communication and "attorney's
17
fees for related discovery."
18
Therefore, we will return this matter to the trial level for applicant's attorney to provide a detailed
19
description of the work billed with a justification for how each line item is specifically and directly
20
related to the defendant's ex parte communications and the need to obtain new panel QMEs under
21
section 4062.3(g). Upon receipt of applicant's attorney's amended itemization, the WCJ should review
22
the itemization to determine whether the claimed time is specifically and directly related to the
23
defendant's ex parte communications and the need to obtain new panel QMEs
24
///
25
///
26
///
27
// RAMIREZ, JOSE R.
4
1
For the foregoing reasons,
2
IT IS ORDERED that as our Decision After Reconsideration, the Findings and Award, issued
3
October 17, 2011 is RESCINDED, and the matter shall be RETURNED to the trial level for further
4
proceedings consistent with this opinion and for a new final decision.
5 6
WORKERS' COMPENSATION APPEALS BOARD
7
9 10
ýRONNE G. CAPLANE ICONCUR,
11
13
%M
~
14
fV
•
(44L
ALFONSO J. MORESI
A
15 16
*
FRANK M.BRASS
17 18 19
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
MAR 2
20 21 22 23 24
.
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. JOSE R. RAMIREZ BRADFORD & BARTHEL, LLP LAW OFFICES OF RONALD P. EHRMAN
25 26
SV/sye
27 RAMIREZ, JOSE R.
5