Ex-parte communications (California)

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Ex-parte communications (California)

Postby hirschphd@aol.com on Mon Aug 12, 2019 8:37 pm

As a QME I carried out an evaluation. After the evaluation I called the applicant a couple of times to ask some clarifying questions. I reported on all. I probably billed for some phone time. Does this in any way constitute ex-parte communication?
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Re: Ex-parte communications (California)

Postby jpod on Wed Aug 14, 2019 6:46 am

I was leaving this for the attorneys to address but since no-one has chimed in I will.

I suppose in a technical sense it is ex-parte but I do not believe a WCJ would rule so unless something extraordinary occurred. Revealing what was communicated, (what was asked and what was answered) as soon as possible would probably suffice.

If the employee is represented that might raise an issue b/c the employee's representative might feel uneasy, again depending on the nature of the communication. I wouldn't make a habit of it doing this though.

You may want to rethink billing for the calls though; you were suppose to capture everything during the evaluation; it is unseemly for you to charge for your effort to remedy the failure to conduct a complete evaluation or to document what was asked and answered.
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Re: Ex-parte communications (California)

Postby hirschphd@aol.com on Wed Aug 14, 2019 3:39 pm

thank you jpod
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Re: Ex-parte communications (California)

Postby hirschphd@aol.com on Wed Aug 14, 2019 3:39 pm

thank you jpod
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Re: Ex-parte communications (California)

Postby lawdog640 on Wed Aug 14, 2019 4:32 pm

I would advise against contacting an Applicant after the exam to discuss substantive issues, and would make sure to include the specifics of what was discussed in your report. With that said, this type of communication is addressed in Regulation 35(k), which reads in part:
(k) ... Oral or written communications by the employee ... made in the course of the examination or made at the request of the evaluator in connection with the examination shall not provide grounds for a new evaluator unless the Appeals Board has made a specific finding of an impermissible ex parte communication.
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Re: Ex-parte communications (California)

Postby mk61347 on Thu Aug 15, 2019 7:09 am

I am not an atty but a psychologist.

Sometimes my notes are unclear and i call the injured work so my report is as accurate as i can make it. Also sometimes i make a mistake and forgot to ask a question. But i do not understand why talking to an injured worker in my office face to face is acceptable, yet talking to them on the phone might be unacceptable. In both cases it is just me and the injured worker
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Re: Ex-parte communications (California)

Postby cmunday on Thu Aug 15, 2019 12:00 pm

Just another twist on the situation that has happened to me several times. After the actual exam the applicant calls and leaves me a voicemail with something they "forgot" to tell me during the exam. I just make it very clear what occurred and what was said in the voicemail. I have never had this questioned. I would not think this would be construed as ex parte communication but...........

My suspicion (and sorry if I'm being too cynical) is that the only time this might be raised as an issue is if one of the parties really did not like the conclusions of the evaluator.
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Re: Ex-parte communications (California)

Postby hirschphd@aol.com on Fri Aug 16, 2019 6:20 pm

Thank you all. Excellent feedback. Any attorneys out there?
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Re: Ex-parte communications (California)

Postby hirschphd@aol.com on Fri Aug 16, 2019 6:20 pm

Thank you all. Excellent feedback. Any attorneys out there?
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Re: Ex-parte communications (California)

Postby hirschphd@aol.com on Fri Aug 16, 2019 6:22 pm

Thank you lawdog
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