What the panel ordered
The WCAB rescinded the May 9, 2022 Findings & Order and substituted a new order preserving the finding of injury and finding that Dr. Ponton was a treating physician to whom Labor Code section 4062.3 does not apply. Dr. Ponton shall continue as the medical-legal neuropsychological evaluator.
Applicant seeks removal of the Findings & Order issued by the WCJ on May 9, 2022, challenging the striking of Dr. Ponton's report and the replacement of the medical-legal neuropsychological evaluator.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Appeals Board found that Dr. Ponton was a treating physician selected from the employer's MPN and not a qualified medical evaluator selected from a panel, so section 4062.3 does not apply to him.
From the decision · page 1Applicant seeks removal of the Findings & Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on May 9, 2022. The WCJ found that while employed on March 1, 2019 as a dry cleaning assistant by defendant, applicant sustained injury arising out of and in the course of employment to the head, face, and neck and claims injury to various body parts; that Dr. Marcel Ponton was the medical-legal evaluator pursuant to Labor Code section 4062.32; that his report was obtained in violation of section 4062.3; that his report was struck and inadmissible in all further proceedings. She ordered that Dr. Ponton was replaced as the medical-legal neuropsychological evaluator and that the parties should select a new evaluator to conduct a complete medical-legal neuropsychological assessment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Ponton was selected from the employer's Medical Provider Network (MPN) and not from a QME panel.
Favours Applicant prevailed
This fact meant that Labor Code section 4062.3, which restricts communication with QMEs selected from a panel, did not apply to Dr. Ponton.
From the decision · page 5"Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited." (§ 4062.3(g), emphasis added). We discern no ambiguity in the language of the statute. The plain language of section 4062.3 limits its application to information and communication with a qualified medical evaluator selected from a panel. Likewise, ex parte communication is only prohibited with an agreed medical evaluator or a qualified medical evaluator selected from a panel. The record establishes that Dr. Ponton was not selected from a panel but rather was selected from the employer's MPN. (See § 4616, et seq.) Since it is clear Dr. Ponton was not selected from a panel nor was Dr. Ponton an agreed medical evaluator, it therefore follows that under a plain language reading that section 4062.3 does not apply to Dr. Ponton.4
Dr. Ponton was a treating physician, not a medical-legal evaluator as defined under Labor Code section 4062.3.
Favours Applicant prevailed
This supported the conclusion that section 4062.3 does not apply to Dr. Ponton's evaluation and reporting.
From the decision · page 9FINDINGS OF FACT 1. applicant, while employed on March 1, 2019, as a dry cleaning assistant, in San Jose, California, by Kyong Ae Yun and Chong Myon Yun, sustained an injury arising out of and arising in the course of employment to the head, face, and neck and claims to have sustained injury arising out of and in the course of employment to the left eye, left ear, vision, teeth, thoracic spine, lumbar spine, right leg, right knee, sleep, psyche, internal, memory, and cognitive. 2. On the date of injury, the employer's workers' compensation insurance carrier was Zenith Insurance Company. 3. Dr. Ponton is a treating physician and not a medical-legal evaluator as defined under Labor Code section 4062.3. 4. Labor Code section 4062.3 does not apply to Dr. Ponce's evaluation and reporting.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Ponton was found to be a treating physician and not subject to Labor Code section 4062.3, and his report was not to be struck.
The Appeals Board found that Dr. Ponton was selected from the employer's MPN and not a QME panel, so section 4062.3 does not apply to him.
From the decision · page 1Applicant seeks removal of the Findings & Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on May 9, 2022. The WCJ found that while employed on March 1, 2019 as a dry cleaning assistant by defendant, applicant sustained injury arising out of and in the course of employment to the head, face, and neck and claims injury to various body parts; that Dr. Marcel Ponton was the medical-legal evaluator pursuant to Labor Code section 4062.32; that his report was obtained in violation of section 4062.3; that his report was struck and inadmissible in all further proceedings. She ordered that Dr. Ponton was replaced as the medical-legal neuropsychological evaluator and that the parties should select a new evaluator to conduct a complete medical-legal neuropsychological assessment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4062.3
Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator. All communications with a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation. Ex parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited.
The Appeals Board found that section 4062.3 applies only to QMEs selected from a panel and not to treating physicians selected from the employer's MPN, such as Dr. Ponton.
From the decision · page 52. The fundamental purpose of statutory interpretation is to ascertain the Legislature's intent in order to effectuate the law's purpose. (People v. Murphy (2001) 25 Cal.4th 136, 142.) Interpretation begins "with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent." (People v. Watson (2007) 42 Cal.4th 822, 828.) The plain meaning controls if there is no ambiguity in the statutory language. (People v. King (2006) 38 Cal.4th 617, 639.) In this matter the statutory language is clear. "Information that a party proposes to provide to the qualified medical evaluator selected from a panel shall be served on the opposing party 20 days before the information is provided to the evaluator." (§ 4062.3(b), emphasis added). "All communications with a qualified medical evaluator selected from a panel before a medical evaluation shall be in writing and shall be served on the opposing party 20 days in advance of the evaluation." (§ 4062.3(e), emphasis added).
What proof carried it
The evidence the panel weighed, by kind.
Applicant's communication with Dr. Ponton was not ex parte because Dr. Ponton was a treating physician, not a QME selected from a panel.
From the decision · page 63. Here Dr. the applicant was a treating "secondary physician" as originally referred by the primary treating physician Dr. Allen Kaisler-Meza. (Cal. Code Regs., tit. 8, § 9785(a)(2).) PQME Shorr found "[t]he claimant needs to go back to Dr. the applicant or another neuropsychologist." (Applicant Exhibit 6, Robert J. Shorr, M.D., September 2, 2020, page 31, emphasis added.) Dr. Ponton replaced Dr. the applicant as a treating "secondary physician" selected from the MPN. It is antithetical to a workers' compensation benefit delivery system to restrict applicant's communication with a treating physician or secondary physicians when seeking treatment. Applying ex parte prohibitions on such communications would be cumbersome, delay treatment and run afoul of the constitutional mandate to provide "full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury" and to "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character". (Cal Const, Art. XIV § 4, emphasis added.) Section 4062.3 did not apply to Dr. Ponton, and thus, applicant's communication with Dr. Ponton did not and could not violate the ex parte prohibition in section 4062.3. Further, since section 4062.3(g) does not apply, and as explained below, we see no reason to strike Dr. Ponton's reporting.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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