PQME COMMUNICATION RULES

Sandab Suon v. California Dairies (2018), involved a case where the parties at a deposition discussed the need to forward a particular psych report to an internal PQME, which was then sent by a co-defendant but possibly in an ex part manner and clearly done without following the procedures under Regulation 35.

In an en banc decision, the Appeals Board took the opportunity to discuss overall guidelines as to how handle such disputes, and held: 1) Disputes over what information to provide a QME are to be presented to the WCAB if not informally resolved; 2) The opposing party must object within a reasonable period of time as to medical records being sent to a QME (noting no exact timeframe exists for medial records as oppose to information); 3) If an aggrieved party wants to cancel a QME exam due to an ex parte communication, the objection must done in a reasonable timeframe; 4) The Trial Judge has wide discretion to determine a remedy for an ex parte violation; and 5) Removal is the appropriate procedure to challenge a Judge's decision on QME information issues (as oppose to a petition for reconsideration).

INDEPENDENT CONTRACTOR: BORELLO TEST SURVIVES

In the panel-only decision of Perkins v. Don L. Knox (2018), the WCAB concluded that in determining whether an individual is an employee versus an independent contractor, the "ABC Test" outlined in the California Supreme Court case of Dynamex Operations v. Superior Court (2018) was limited to civil wage order disputes only and is not applicable in deciding employee status issues in workers' compensation.

The WCAB confirmed the "Borello Test" still applies in which the Labor Code Section 2750.5 factors (i.e. hours, licensing, tools, etc.) are weighed to determine whether an individual is an employee or an independent contractor.

[COMMENT: This is only a panel decision with minimal weight, and likely to be litigated further.]