So, dear readers, are you interested in a crackpot thought your humble blogger had as he sipped his Diplomatico Rum and glared menacingly at the outside world?  If your humble blogger were to call a QME to set up an evaluation for an applicant, would that be ex parte communication?

After all, the panel opinion in the Lewis Cunningham v. County of San Bernardino matter concluded that contact between an attorney and a Qualified Medical Evaluator was not ex parte communication when the substance was to facilitate a deposition or obtain a copy of an echocardiogram report.

Even the fateful Alvarez decision concluded that “an ex parte communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.”

Well, Labor Code section 4062.3 requires all communication between a PQME and a party to be in writing and either sent to the other side before an evaluation or at the same time as to the PQME (and presumably from the PQME to both sides).

But look down at subsection (f), which specifically excludes from the definition of ex parte communication “[o]ral or written communications … with the agreed medical evaluator, relative to nonsubstantial matters such as the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report.”  There is no corresponding provision for panel qualified medical evaluators, just AMEs.

Interestingly enough, if we look at Labor Code section 4062.3, subsection (f) from any time prior to January 1, 2013, we find the following instead: “[e]x parte communication with an agreed medical evaluator or a qualified medical evaluator selected from a panel is prohibited.”  In fact, the entire Labor Code section fails to use the terms “inconsequential” or “nonsubstantial” even once.

So, dear readers, what is the take-away from all this?  Your humble blogger submits to you the following thought:  Because the Legislature reviewed and amended Labor Code section 4062.3, making changes effective January 1, 2013, it specifically rejected the notion that there might be “inconsequential” or “nonsubstantial” ex parte communication with a panel qualified medical evaluator.

In other words, all panel and case authority which suggests that there is any communication with a panel qualified medical evaluator that (1) does not need to be in writing; or (2) can be done on an ex parte basis is superseded and invalidated by the latest amendments to the Labor Code, effective January 1, 2013.

Now, my readers should recognize that when an applicant’s attorney does this, it is ex parte communication, is punishable by fines, fees, penalties, sanctions, a new panel, and the attorney has to offer a written apology and provide video footage of him or herself standing in a corner weeping gently.

On the other hand, when a defense attorney does this… “come on! It’s just a harmless scheduling discussion.”  For authority supporting this position, other than just because Greg said so, please see… [citation needed].

Your humble blogger wishes you a good weekend, dear readers!