A court of appeal’s hard-line interpretation of rules governing contact between doctors, attorneys and claims adjusters handling disputed workers’ comp cases may be softening. The Second District Court of Appeal agreed to revisit its decision in Alvarez v. Workers’ Compensation Appeals Board, which found that a one-minute phone call from a provider to the defense attorney was enough to get the original decision tossed.

At issue is whether any and all contact between providers and those litigating cases are banned by Labor Code section 4062.3’s prohibition against ex parte communication or if some nonsubstantive conversations can take place to handle administrative issues. The court was responsive to a request by State Compensation Insurance Fund (SCIF) to rehear the case, but the applicant attorney in the case isn’t giving up the fight just yet. (For past coverage, see Court Takes Hard Line…)

SCIF attorney David Goi made a convincing argument that the court needed to revisit the issue to consider section 4062.3 in the context of the overall workers’ comp system, not just in isolation in the statutes. Goi maintained that California’s system involves a certain degree of informality that helps meet the legislative intent of creating a system that handles cases “expeditiously, inexpensively, and without encumbrance.”

SCIF pointed out that this informality has even been noted in other court decisions. The Third District described it as “procedural informality that would make the civil practitioner shudder,” Goi noted in his petition. He also argues that the original opinion strips WCAB of its authority to determine if a party was prejudiced by the communication.

In the underlying case, the court said a SCIF attorney violated the claimant’s rights when she took a call from the Qualified Medical Evaluator assigned to the case. The QME had called her directly to ask for a copy of a report that he had misplaced. The attorney ended the call when she realized that it was about an active case and promptly notified the claimant about the one-minute phone call.

But Carl Feldman, Carlos Alvarez’s attorney, is adamant that anyway you look at it, the conversation was ex parte communication. He just filed his reply brief with the court and maintains that the original ruling should stand.

“We think the judge had it right the first time, finding that [the conversation] was ex parte communication. How do I know whether it was administrative or substantive? It was two people talking together, so how do I know what was said? Nobody knows except them,” he tells Workers’ Comp Executive. “And we don’t agree with the argument that it’s public policy that the Legislature wanted to move cases along, so therefore everybody’s due process rights get trampled.”

He notes that the issue is now back in the court’s hands. The Second District could call for a full hearing on the issues presented or may rule on the arguments already filed, but Feldman wasn’t predicting how it would be resolved.

For its part, SCIF sought to protect the industry from the original ruling, asking the court to depublish the opinion if it again finds the communication violated the ex parte rules. Depublication would keep the case from being cited in other legal proceedings.