WCDefenseCA does not often agree with panel opinions which hand victory to an applicant at a defendant’s expense.  Grudgingly, however, your humble blogger is forced to agree with the panel decision in Darlene Berke v. Bloomingdales.

We all remember how Alvarez threw the workers’ compensation world, applicants’ attorneys and defense lawyers alike, upside down, keeping us guessing as to how trivial or administrative a communication could incur the punishment of an ex-parte sanction.  Subsequent decisions have since clarified this issue, but only a little.

Well, the Berke case did not reach that point.  Instead, it addressed the issue of who holds the right to demand a new panel under Labor Code section 4062.3(f).  Basically, the panel Qualified Medical Evaluator called the defendant’s office demanding payment of a deposition fee two weeks in advance of the deposition, complaining of a history of insurance companies not paying him.

The defense moved to have the panel stricken for ex parte communication – the PQME contacted them in an inappropriate manner (not in writing and not copied to both sides).  The workers’ compensation Judge and the Workers’ Compensation Appeals Board both ruled that the party not involved in the ex parte communication holds the right to request a new panel.

This makes sense, after all – imagine if any time the applicant was unhappy with the panel QME, he need only pick up the phone and talk about the weather for 10 minutes before he could demand a new panel.

However, that being said, if your ever-ambitious and power-hungry blogger should ever get his hands on a black robe and gavel, he could be persuaded that defendant’s position is the correct one under a particular theory.

What is this brilliant theory that your sharp-witted blogger hatched to bring glory to the defense community?  I’m so glad you asked!

In Berke, it was the PQME who initiated the contact and engaged in ex parte communication with a party.  In such a case, it is fair to assume that the PQME, either through ignorance of the law or through reckless disregard of it, has a habit or propensity of engaging in such behavior.  Therefore, if the defense knows that the PQME has engaged in ex parte communication with it, the defense can safely assume that the PQME has or will engage in ex parte communication with the applicant’s attorney.  Sometimes, such communications may go unreported by the other side.

Also, ex parte communication should come with a sanction of some sort.  In cases such as these, the parties are blameless, but the PQME is in the wrong.  Perhaps a loss of fees and probationary QME status is an appropriate punishment.