New York Court Says Attorney’s Ex Parte Text Message to Physician Was Harmless

In a divided decision, a New York appellate court recently held that the state’s Workers’ Compensation Board abused its discretion when it excluded from the record a physician’s medical report and his deposition testimony, based upon the fact that claimant’s attorney sent the physician a short text message one day before the physician’s deposition, without also send a copy of the message to the employer/carrier’s counsel [Matter of Knapp v. Bette & Cring LLC, 2018 N.Y. App. Div. LEXIS 8159 (Nov. 29, 2018)].

Court Says Text Message was only “Ministerial in Nature”

The appellate court stressed that the nature of a communication must be considered in context and that here, the text message merely indicated that the deposition would address claimant’s schedule loss of use. The court acknowledged that a copy of the message was not provided to the employer, the carrier, or their counsel, but noted also that the text message was “ministerial in nature” and did not reflect an effort to influence the witness testimony [Opinion, p. 5]. Under these circumstances, the Board’s decision to preclude the physician’s report and deposition testimony based on what the Board considered an appearance of impropriety was unwarranted and constituted an abuse of discretion.