What the panel treated as outcome-determinative, and which side it favoured.
The communication on September 23, 2016 was a simple request for clarification on whether and when Dr. Madrid should review surveillance videos and issue a supplemental report.
Favours Applicant prevailed
This showed the communication was reasonable and not a nefarious ex parte contact, supporting the decision not to replace Dr. Madrid.
From the decision · page 10Despite defendant's sustained efforts to depict improper communication between the QME
and applicant's attorney, the record reflects that the September 23, 2016 communication was a
simple request for clarification on when and whether Dr. Madrid should review the surveillance
videos and issue a supplemental report. This communication was two days after applicant filed
his Petition Preserving Qualified Medical Evaluator Status and DOR in response to defendant's
replacement panel requests for both QMEs. The note memorializing the QME's conversation with
applicant's attorney's assistant expressly acknowledged receipt of applicant's pleadings and
requested to "know when and how to proceed." This note indicates Dr. Madrid logically
understood his continued involvement in the case was uncertain at that time since defendant was
attempting to replace him as the QME. This is a reasonable request for clarification on whether
and when to review the videos and issue a supplemental report rather than a nefarious attempt to
conspire with applicant's attorney. Moreover, this communication was with applicant's attorney's
The communication was insignificant and inconsequential, not related to scheduling or availability of the report.
Favours Applicant prevailed
This supported the conclusion that the communication did not warrant replacement of the QME.
From the decision · page 11Although we recognize that the QME should communicate simultaneously with both
parties to avoid an ex parte communication, the September 23, 2016 phone call was insignificant
and inconsequential. Therefore, the record does not support the remedy of replacing the QME.
The WCJ acted within discretion to reopen discovery on all issues to ensure substantial evidence and due process.
Favours Applicant prevailed
This supported the decision to uphold the order reopening discovery.
From the decision · page 11The WCJ acted within his discretion to reopen discovery on all issues and further discovery
may be warranted in order to ensure there is substantial evidence in the record to address the issues
still in dispute. We will thus retain the order reopening discovery in the new decision.