Home > QMEs > A Few Acceptable Ex Parte Communication Types

A Few Acceptable Ex Parte Communication Types

Every once in a while, the storm of insanity that is California’s workers’ compensation system breaks, and a gust of rational air soothes and refreshes us all.

As my well-read and well-informed readers no-doubt remember, the panel QME system was turned into a grade-school dance by the decision in Alvarez v. Workers’ Compensation Appeals Board.

The panel qualified medical evaluators lined up on one side of the gym, the workers’ compensation attorneys on the other, each afraid to move lest they be accused of cooties ex parte communication.

You see, the Alvarez decision didn’t tell the world of workers’ compensation exactly what is, and what is no, ex parte communication of the sort that would trigger a Labor Code section 4062.3, but instead said that “an [ex parte] communication may be so insignificant and inconsequential that any resulting repercussion would be unreasonable.”

For a while after the Alvarez decision, defense firms (and possibly applicant’s offices) were walking on egg-shells.  If sending a letter by facsimile to the panel QME, make sure to fax it to the applicant’s attorney first, and keep a confirmation receipt of both!  It’s silly – an immaterial communication having nothing to do with the substance of the case, often times enough conducted by support staff on both ends.

Who wants to be the first to ask one of the girls to dance?

A recent panel opinion (Lewis Cunningham v. County of San Bernardino (2011) 14 WCAB Rptr. 14, 012) concluded that at least three forms of communication between a panel QME and an applicant’s attorney did not trigger a right to a new panel:

1) a communication to obtain a copy of an echocardiogram report;

2) a communication to facilitate scheduling a deposition; and

3) a communication to facilitate re-scheduling a deposition.

No doubt the limits of “insignificant and inconsequential” will be explored further in the future, perhaps with some binding authority providing a list.  In any case, so long as the matter remains uncertain, more litigation and more expense will follow.

Categories: QMEs

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