Ex Parte Communications Sink NY Death Benefits Claim
Showing just how serious New York courts take the issue of ex parte communications between counsel and medical experts, a New York appellate court recently affirmed an order by the state’s Workers’ Compensation Board that in turn had adopted and affirmed a decision by a WCLJ disallowing a claim for workers’ compensation death benefits where the WCLJ had declined to give any weight to medical opinions offered by two medical experts—an independent medical examiner and the deceased employee’s treating physician—since each had significant ex parte contact with claimant’s attorney [Matter of Goutermout v. County of Oswego, 2021 N.Y. App. Div. LEXIS 3454 (3d Dept., May 27, 2021)]. Without the benefit of the opinions of the two experts, there was insufficient evidence to tie the employee’s death to the employment.
Background
Claimant’s husband (the “decedent”) died after suffering a cardiac incident at work, and claimant subsequently filed a claim for workers’ compensation death benefits. An independent medical examiner, provided a medical report and deposition testimony opining that decedent’s death was causally related to his employment. Decedent’s treating physician filled out the C-64 proof of death form, testified as to the causal connection between decedent’s employment and his death. During their deposition testimony, however, it was disclosed that both the medical examiner and the treating physician had ex parte communications with claimant’s counsel.
The WCLJ found that the ex parte communication with the medical examiner and treating physician was extensive and gave no weight to their medical opinions. The WCLJ, therefore, disallowed the death benefit claim due to the lack of sufficiently supporting medical evidence that decedent’s death was causally related to his employment. The Board adopted the WCLJ’s findings and affirmed the decision. Claimant appealed.
Initially, the appellate court noted that N.Y. Workers’ Comp. Law § 13-a(6)(a) 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.” Moreover, the court observed that, in response to various inquiries, the Board had issued Subject No. 046-124, which provides that every effort should be made to avoid even the appearance of attempting to influence the opinion of a health care professional. To that end, Subject No. 046-124 notes that, depending on the nature of the communication, the WCLJ or Board may choose to afford no weight to the evidence provided by the health care professional.
Extensive Ex Parte Conferences
The court stressed that there was no dispute that both the medical examiner and the treating physician had ex parte communications with claimant’s counsel. Indeed, the medical examiner testified that, on the day before his deposition, he met with claimant’s counsel at counsel’s office for an hour to review records and discussed the basics of what the deposition would entail. The treating physician testified that, in his contact with claimant’s counsel, he and claimant’s counsel went over various records, including depositions, medical records and the autopsy, on the telephone for over 15 minutes in preparation for completing the C-64 proof of death form.
Communications Were Not “Ministerial”
The court said the relevant statutes and regulations made clear that parties are to be notified of substantive communication with medical professionals. Given the extensive nature of the communications, which involved review of medical records and discussions regarding the completion of forms, the court was unpersuaded by claimant’s contention that the Board erred in not finding such communication to be ministerial. Moreover, considering the nature of the extensive ex parte communications, the court said it found no reason to disturb the Board’s discretionary determination to give no weight to the medical opinions of the medical examiner and the treating physician. The court affirmed the Board’s decision.