Ok, dear readers, are you ready for another crackpot argument?  Are you willing to risk being laughed out of court, sanctioned, exiled, and sent to bed without your supper?  Your humble blogger is aware of this argument being tried all of one time, and succeeding one time less than that.

So, here’s the set-up.  Opposing counsel has engaged in any form of ex parte communication: this could be inadvertent, ex parte communication in the classical sense, or ex parte communication only because the Labor Code says so – in that opposing counsel failed to serve you 20 days prior to providing records or reports to the panel QME (or AME).

Well, the remedies are laid out in Labor Code section 4062.3 – sanctions, penalties, attorney fees, and a new panel (or new PQME).  But here’s the implied remedy that doesn’t get spelled out and hasn’t (to your humble blogger’s knowledge) been taken up on any level of appeal: the aggrieved party should get to select a new panel specialty.

…

I commend you brave souls that have weathered the blasphemy above and the sacrilege to follow.  It’s unheard of, it’s unthinkable, it’s a crackpot idea at best.  Why should the party aggrieved by the ex parte communication get to choose a new panel specialty?

Well, here’s what your humble blogger thinks should guide the legal reasoning:  Labor Code section 4062.3(g) holds that “the aggrieved party may … seek a new evaluation from another qualified medical evaluator to be selected according to … Section 4062.2.”  Section 35(k) also holds that “the Medical Director shall provide the aggrieved party with a new panel in which to select a new QME.”

So, you might ask, as you sharpen your pitch fork and light your torch, how does that entitle the aggrieved party to select a new panel specialty?  If the applicant beat us to the punch and selected a chiro or pain management panel, how does this translate to a sudden spine or ortho panel specialty?

Well, take a glance at the second-to-last sentence of Section 4062.2(b): “[t]he party submitting the request shall designate the specialty of the medical evaluator…”  If one party breaks the rules, the other party gets to submit a request for a new panel.  And the party submitting the request for a new panel shall designate the specialty.

You still have to prove that you’re the aggrieved party, and you still have to get over the non-binding trial-level precedent this blogger is aware of: 0/1.

So, anyone out there ready to give this a shot?  Anyone out there had success with this?  Leave a comment and let me know.