Lab. Code, §§ 5900(a), 5902, 5903
A petition for reconsideration may only be taken from a final order, decision, or award, which determines substantive rights or fundamental threshold issues.
The Board treated the petition as one for reconsideration despite the order being non-final because it involved a mandatory provision requiring payment of costs and attorney's fees, making it effectively final.
From the decision · page 4I.
For the reasons explained below, we will treat the Petition as one for reconsideration. We
note that unfortunately, orders that include narrative statements cause precisely the sort of
confusion that occurred here.
Applicant seeks reconsideration or removal of the Order, which included an order for the
parties to meet and confer prior to the status conference in an effort to resolve or determine whether
they could agree to an agreed medical evaluator (AME) in psyche or a regular physician in
psychiatry. The WCJ also noted within the Order that it "appears that the reporting of Dr. Levine
should be stricken due to the ex-parte communication that took place."
A petition for reconsideration may properly be taken only from a "final" order, decision,
or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either
"determines any substantive right or liability of those involved in the case" (Rymer v. Hagler
(1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer)
(1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v.
Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661])
or determines a "threshold" issue that is fundamental to the claim for benefits (Maranian v.
Lab. Code, § 4062.3(g), (i)
Prohibited ex parte communications with medical evaluators may lead to striking reports; however, oral or written communications by the employee or at the evaluator's request in connection with the examination are exempt.
The Board found it unclear if the communication between applicant's daughter and Dr. Levine was prohibited ex parte communication or exempt, and that the record was insufficient to evaluate this.
From the decision · page 9Additionally, the prohibition against ex parte communication may not apply to applicant's
daughter as she may not be a party pursuant to section 4062.3(g) "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. (Lab. Code, § 4062.3(g) [emphasis added].)
"Party" means any person or entity joined in a case, including but not limited to: (1) An applicant;
(2) A defendant; or (3) A lien claimant. (Cal. Code Regs., tit. 8, § 10305(q).) Further, the
prohibition against ex parte communication "shall not apply to oral or written communications...
at the request of the evaluator in connection with the examination." (Lab. Code, § 4062.3(i).) It
is not apparent from the record before us if the communication with the daughter was at the request
of Dr. Levine in connection with the examination. Thus, we cannot evaluate whether the
prohibition against ex parte communications applies to the daughter, and if the communication
was exempt as it was at Dr. Levine's request.