Ex Parte Letter to Treating Physician Sinks NY Truck Driver’s Occupational Disease Claim

Stressing that it is for the New York Workers’ Compensation Board to weigh the evidence—including the medical evidence—and that the Board’s findings will be upheld if supported by substantial evidence, a state appellate court affirmed the Board’s finding that a truck driver had failed to submit credible medical evidence of a causally-related occupational disease where the driver’s primary medical evidence consisted of testimony that the physician admitted had been significantly impacted by an ex parte letter sent the physician by the driver’s counsel [Matter of Powers v. State Material Mason Supply, 2022 N.Y. App. Div. LEXIS 938 (3d Dept., Feb. 10, 2022)]. Under the circumstances, the court held the Board was within its discretion to find that the ex parte letter had undermined the physician’s testimony.

Background

Claimant, a delivery truck driver, filed a claim for workers’ compensation benefits in 2020, citing injuries to his back resulting from repetitive stress and use in the performance of his work duties. The employer and its carrier controverted the claim. Claimant testified that he began working for the employer in March 2017 and that his duties included driving a truck, carrying masonry and concrete supplies, securing material to his truck and operating a forklift, which required him to lift, bend, push and pull. He testified that he first experienced symptoms in October 2018, stopped working in September 2019, and underwent back surgery a month later. He denied having experienced symptoms prior to October 2018, but confirmed that he has suffered from rheumatoid arthritis, resulting in permanent nerve damage, since at least 2012.

Following a hearing, a WCLJ found prima facie medical evidence of an occupational disease to claimant’s back. Upon administrative review, the Board reversed and disallowed the claim, finding instead that claimant failed to establish a causally-related occupational disease. Claimant's application for reconsideration and/or full Board review was denied. Claimant appealed.

Claimant’s Counsel’s Letter to MD

Particularly crucial to the Board’s determination was the issue related to a letter sent by claimant’s counsel to claimant’s treating physician before the latter’s deposition. The letter listed claimant’s job duties and provided information regarding the development and onset of claimant's symptoms—including that, contrary to claimant’s testimony, his symptoms began in March 2019. The letter further informed the treating physician that, “[t]o proceed with [claimant’s] claim[,] we will need prima facie medical evidence[,]” including “a diagnosis and a statement indicating whether in [the doctor’s] opinion the diagnosis is causally related to the history received.”

Claimant’s counsel also noted that he “defer[red] to [the physician’s] medical expertise” and thanked him for his “anticipated cooperation.” The treating physician, in turn, then sent reply correspondence stating that, based upon the contents of the letter, “there is no doubt” that claimant’s work duties for the employer “contributed to the progression of his symptoms” but that “his work for [the employer] cannot be the sole cause of his disability and injuries.” Counsel’s letter was dated March 2020, but was not filed with the Board until July 2020, after the treating physician had already been deposed.

Treating Physician’s Testimony

The treating physician testified that an MRI was taken in June 2019 confirmed that claimant suffered from multilevel degenerative discs and facet arthropathy, superimposed on congenital spinal stenosis. Contrary to claimant’s assertion, however, the physician testified that it was initially represented to him that claimant’s symptoms to his back and radiating pain to his left leg began 10 years prior to 2019. Moreover, the physician explained that the conditions suffered by claimant develop over “many years” and could be the result of a combination of factors, including cigarette smoking, environmental exposures and genetics.

When asked about how the condition might relate to claimant’s job duties, the physician testified that they could have contributed to his condition, but that this assessment was based upon claimant’s duties and employment history as described in his counsel’s March 2020 letter, and that he did not know how long claimant had worked as a truck driver. The physician further testified that the March 2020 letter was “part of what contributed to [his] current medical opinion.”

Surgeon Had No Opinion on Causation

The appellate court noted that the medical notes of claimant's surgeon failed to mention any connection between claimant’s condition and his employment and, during his deposition, the surgeon indicated that he had no opinion as to a causal connection between claimant’s injuries and his employment.

Ex Parte Letter Failed to Comply with § 13-a(6)

The Board, sua sponte, found that counsel’s ex parte March 2020 letter to the claimant’s treating physician failed to comply with N.Y. Workers’ Comp. Law § 13-a(6), which prohibits “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.” The Board based its finding, inter alia, on the physician’s own testimony as to the impact of the letter’s contents on his medical conclusions. The Board then used that finding in its “credibility calculus,” ultimately determining that the physician’s testimony had been “undermined.”

Appellate Court: Board’s Job to Weigh Medical Evidence

The appellate court stressed that it was for the Board to weigh the medical evidence. It added that, contrary to claimant’s assertion on appeal, he had been given the opportunity to address his counsel’s March 2020 letter, since the physician was questioned and cross-examined extensively as to his understanding and reliance upon the letter. The letter was also addressed in the summations given at the hearing. In view of that, and other matters, the appellate court found that the Board’s determination that claimant did not submit credible medical evidence of a causally-related occupational disease was supported by substantial evidence.