NY Court Bars IME Physician’s Testimony on Strict Procedural Grounds
A recent decision from the Empire State, Matter of Keller v. Cumberland Farms, 2019 N.Y. App. Div. LEXIS 9113 (3d Dept. Dec. 19, 2019), illustrates a point sometimes lost on the parties to workers’ compensation disputes: that while boards and administrative bodies administering state workers’ compensation laws eschew strict and technical procedural rules, those rules often will not be disregarded when it comes to matters of fair play (see Larson’s Workers’ Compensation Law, § 124.01, et. seq.). The New York court, construing N.Y. Workers’ Comp. Law § 137(1)(b), which proscribes the improper influencing or attempt to influence the medical opinion of any physician who has treated or examined an injured employee, affirmed a decision by the state Board that had precluded the admission of a medical report and testimony by a physician who failed to turn over to the Board a letter the physician received from the claimant’s attorney prior to the medical examination and an intake form completed by the claimant just prior to the examination.
Background
Claimant sought workers’ compensation benefits, alleging that he contracted bladder and kidney cancer as the result of years of exposure to carcinogens while working as a diesel mechanic for the employer. The Board precluded the report of claimant’s independent medical examiner, Lester Ploss, due to a lack of compliance with N.Y. Workers’ Comp § 137 and 12 NYCRR 300.2. Without such evidence, the Board further found that the record lacked sufficient credible medical evidence demonstrating an occupational disease and disallowed the claim. Ultimately, Claimant appealed to New York’s appellate division.
Ex Parte Communications
N.Y. Workers’ Comp. Law § 137(1)(b) essentially provides that if a practitioner receives a request for information regarding the claimant, the practitioner must submit a copy of the request to the Board within 10 days of its receipt. According to the regulations, a request for information is:
any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person or entity, … that takes place or is initiated outside of the independent medical examination, including … 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 (12 NYCRR 300.2 [b] [11]).
“Substantive Communication”
Ploss testified that he received a letter from claimants attorney that “describe[ed] the maladies, the problems, that [claimant] had.” Ploss did not submit a copy of the letter to the Board. At issue, therefore, was whether the letter was a “substantive communication.”
Under the statute and regulations, the independent medical examiner must also provide copies of any questionnaires or intake sheets completed by the claimant at the request of the examiner. Ploss testified that he had claimant fill out an intake sheet, but he did not file the sheet with the Board.
No Substantial Compliance with Statute and Regs
The appellate court found that given the foregoing, the Board was free to find that there had not been substantial compliance with the requirements of N.Y. Workers’ Comp. Law § 137 and 12 NYCRR 300.2. Accordingly, the Board properly precluded Ploss’ report and testimony.
Comment
The court’s decision in the instant case should be contrasted with a decision by a divided Third Department panel last December. In that decision, Matter of Knapp v. Bette & Cring LLC, 166 A.D.3d 1428, 87 N.Y.S.3d 745 (3d Dept. 2018), the majority of the court held that the 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. For a more complete discussion of that earlier decision, click here.