Subject Number 046-1749

Subject Number 046-1749 Clarification of Subject Number 046-124

Clarification of Subject Number 046-124: Rights and Responsibilities of Parties to a Workers' Compensation Claim When Communicating with Treating Health Care Professionals and Independent Medical Examiners

Board Bulletins and Subject Numbers

It has come to the attention of the New York State Workers' Compensation Board (Board) that some attorneys believe that Subject Number 046-124 precludes interested parties from any communication with a health care professional who has treated or examined an injured worker.  The purpose of this Subject Number is to clarify that Subject Number 046-124 was never intended to be interpreted as precluding proper communication with a health care professional who has treated or examined an injured worker.  Proper communication can be helpful to obtain clarity and avoid unintended disputes resulting in litigation.  The delineation between proper and improper communication is set forth in statute and regulation: Workers' Compensation Law (WCL) Sections 13-a(6), 137(1)(b) and (c), 137(6), 12 NYCRR 300.2(b)(11), 12 NYCRR 325-7.7(a), and 12 NYCRR 325-8.5(a).  The Board published Subject Number 046-124 in 2003, establishing guidelines concerning appropriate communication with health care professionals relative to workers' compensation claims.  The Board advised parties to limit contact, and to ensure that any questions were straight forward and not leading.  Further, parties were instructed to share any communication with opposing parties and their legal representative and warned that any ex parte communication may result in the preclusion of a report or testimony.  The Appellate Division upheld the Board's guidance, finding that Board Subject Number 046-124 "comports with the Board's obligation to ensure the integrity of independent medical examinations… and the Board's administrative and discretionary authority" (Matter of Knapp v Bette & Cring LLC, 166 AD3d 1428 [2018]).

Applicable Law:

WCL Section 13-a(6)(a) states:

Any interference by any person with the selection by an injured employee of an authorized physician to treat him, except when the selection is made pursuant to article ten-A of this chapter, and the improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee, shall be a misdemeanor; provided, however, that it shall not constitute interference or improper influence if, in the presence of such injured employee's physician, an employer, his carrier or agent should recommend or provide information concerning rehabilitation services or the availability thereof to an injured employee or his family [emphasis added].  The prohibition against improperly influencing "the medical opinion of any physician who has treated or examined an injured employee" contained in WCL § 13-a(6) applies to both treating providers and independent medical examiners (IMEs).  In addition, WCL § 137 and 12 NYCRR 300.2 provide additional rules applicable solely to IMEs.

WCL Section 137(1)(b) states:

If a practitioner who has performed or will be performing an independent medical examination of a claimant receives a request for information regarding the claimant, including faxed or electronically transmitted requests, the practitioner shall submit a copy of the request for information to the board within ten days of receipt of the request.  Nothing in this subdivision shall be construed to abrogate the attorney-client privilege.

WCL Section 137(1)(c) states:

Copies of all responses to such requests for information as are described in paragraph (b) of this subdivision, including all materials which are provided in response to such a request, shall be submitted by the responding practitioner to the board within ten days of submission of the response to the requestor.  Nothing in this subdivision shall be construed to abrogate the attorney-client privilege.

WCL Section 137(6) states:

No practitioner examining or evaluating a claimant under this chapter nor any supervising authority or proprietor nor insurance carrier or employer may cause, direct or encourage a report to be submitted as evidence in workers' compensation claim adjudication which differs substantially from the professional opinion of the examining practitioner.  Such an action shall be considered within the jurisdiction of the workers' compensation fraud inspector general and may be referred as a fraudulent practice.

12 NYCRR Section 300.2(b)(11) states:

Request for information, for purposes of Workers' Compensation Law Section 137(1)(b), except as limited under Civil Practice Laws and Rules Section 4503, means any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person or entity, including a claimant, an insurance carrier, or a third party administrator, that takes place or is initiated outside of the independent medical examination, including a request or referral for examination and any communication related thereto, questions or inquiries related to the claimant or the examination, and the provision of information to the examiner for review in connection with a request for the examiner's professional opinion with regard to the claimant or the examination.  When any substantive communication consists of documents, records, reports, and items that are part of the official Board file and available to all parties at the time they are provided to the independent medical examiner, or his or her office, the documents, records, reports, and items or copies thereof shall not be filed with the Board.

12 NYCRR 325-7.7(a) states:

No person, including but not limited to the employer, insurance carrier, or any of their agents, contractors, servants or employees shall interfere with the selection by a claimant of an affiliated network provider except to the extent that the insurance carrier provides a list of affiliated network providers in accordance with section 325-7.5 (d) (1) (i) (c) and (h) of this Subpart; nor shall any insurance carrier influence or attempt to influence the medical opinion or diagnostic test results of any affiliated network provider, by whom or through which diagnostic examinations and tests were performed and which examinations or tests are interpreted within the meaning of Workers' Compensation Law Section 13-a (7) and this Subpart.  Nothing in this section shall prevent a carrier from recommending the use of a particular affiliated network provider.

12 NYCRR 325-8.5(a) states:

No person, including but not limited to the employer, insurer, carrier, self-insured employer or any of their agents shall interfere with the selection by an injured employee of an authorized physician for treatment except as authorized by article 10-A, section 354 of the Workers' Compensation Law nor shall any insurer, carrier or self-insured employer improperly influence or attempt to improperly influence the medical opinion of any physician who has treated or examined an injured employee within the meaning of section 13-a(6) of the Workers' Compensation Law.

Proper Communications

Parties may properly communicate with a treating provider or IME if the communications comply with the requirements in the statute and regulations, and in no way attempt to improperly influence a medical opinion.  All communication should be written and simultaneously sent to opposing counsel.  Communications that set forth factual information, request the status of a claimant's condition, and do not suggest a desired response are permissible.  Communications that correctly inform the health care professional of the relevant legal standard for determining causation, permanency, or partial or total disability are permissible.  Every effort, however, must be made to avoid even the appearance of attempting to improperly influence the opinion of a health care professional.  The Appellate Division has found that ministerial, or non-substantive communications to a health care provider or independent medical examiner are acceptable (see generally Matter of Knapp).  In Knapp, the Court found that a text message reminding the independent medical examiner about the deposition and indicating the questioning would be related to the claimant's schedule loss of use was ministerial and did not violate WCL § 13-a(6).  As evidence that there was no undue influence, the Court noted that the independent medical examiner's testimony concurred with the medical report filed with the Board.

Improper Communications

The Court addressed the issue of improper communication in Matter of Goutermout v County of Oswego, Town of Volney Hwy. Dept., 194 AD3d 1333 (2021).  In Goutermout, the Court upheld the Board's determination giving no weight to the medical opinions of a treating physician and an IME because the claimant's attorney had extensive ex parte communication with the physicians prior to depositions, including the review of medical records and completion of forms.  Also, in Matter of Powers v State Material Mason Supply, 202 AD3d 1265 (2022), the Court found that counsel's ex parte communication to the claimant's treating health care provider failed to comply with WCL § 13-a(6), and properly resulted in a finding by the Board that the testimony of the claimant's health care provider was incredible.  In Powers, the claimant's attorney sent a letter requesting that the claimant's health care provider provide prima facie medical evidence, a diagnosis, and a statement as to causal relationship.  The letter described the claimant's work duties and provided a timeline for the onset of the claimant's symptoms, but the letter was not simultaneously sent to the carrier or to the Board file.  The physician testified that he based his medical opinion in part on the information he received from the claimant's attorney, and the Court noted that the health care provider's testimony was inconsistent with the medical report filed with the Board.

Conclusion

In summary, parties and their representatives are permitted to properly communicate with a treating provider or an independent medical examiner and request an opinion on an issue such as causal relationship, degree of disability, or permanency.  All communication should be in writing and copied to all parties and the Board.  Ex parte verbal communications should always be avoided, but if they occur, the best practice is to immediately document the communication in writing and send electronically to the other parties and to the Board.  The only communications that are prohibited are those that attempt to improperly influence the opinion of a treating provider or an independent medical examiner, or which are made without the knowledge of the opposing parties.