Date: November 24, 2003
The Workers' Compensation Board ("Board") has received numerous inquiries concerning whether a particular communication between a party to a workers' compensation claim and a treating health care provider or independent medical examiner ("IME") is permissible. Open communication and the free exchange of information between the participants in the workers' compensation system, including health care professionals, are essential to the timely and efficient administration of compensation claims. Although parties to a compensation claim and their legal representatives should be afforded the opportunity to communicate in good faith with both treating health care professionals and IME's, they are nonetheless subject to certain reasonable restrictions designed to ensure that those communications are undertaken in a fair and open manner. The purpose of this Subject Number is to establish guidelines concerning communication with health care professionals relative to workers' compensation claims.
Communications with health care professionals can range from simple requests for relevant or clarifying information, to obvious attempts to influence a physician's medical opinion. As to communications which fall on the latter end of that spectrum, WCL § 13-a(6) provides:
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].
Violations of WCL § 13-a(6) are taken very seriously by the Board. Such behavior undermines the integrity of the workers' compensation system and will not be tolerated. Any violation of WCL § 13-a(6), as well as attempts to garner information from a health care professional in a fraudulent manner, will be referred to the Board's Fraud Inspector General and/or appropriate prosecutorial authorities. With regard to contact with IMEs, WCL § 137(1)(b) and (c) provide:
(b) 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.
(c) 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.
Board Rule 300.2(b)(11) provides:
Request for information, for purposes of section 137(B)(1) of the Workers' Compensation Law, except as limited under Section 4503 of the Civil Practice Law and Rules, means any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person, including a claimant, 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.
In addition to strictly complying with the requirements of WCL § 13-a(6), 137(1)(b) and (c) and Board Rule 300.2(b)(11), parties and their representatives should make every effort to avoid even the appearance that they are attempting to influence the opinion of a health care professional. Contact with health care professionals should be limited to relevant inquiries pertaining to a claimant's condition and treatment. Questions should be carefully crafted so as not to be ambiguous or suggest the response desired.
Also, to avoid even the appearance that they are not acting in good faith, parties and their representatives are required to send a copy of any written communication with a health care professional to the opposing parties and their legal representative.
If a party or their representative contacts a health care professional without giving notice to the opposing parties, evidence obtained as a result of that contact may be precluded. See Matter of Alterra, WCB #7000 7727 (10/4/02, WL31273429). He/she may also be prevented from cross-examining the health care professional regarding evidence which has been precluded based on having contacted the health care professional without giving notice to the opposing parties. See Matter of Buckbee Mears, WCB #9990 5564 (12/09/02, WL 31784164).
Depending on the nature of the communication, the Workers' Compensation Law Judge ("WCLJ") or Board Panel may choose to afford that evidence little or no weight, such as when information conveyed to the health care professional is false or misleading, when the inquiries made are ambiguous or leading, when the communication is verbal, or when the contact appears to violate WCL § 13-(a)(6).
Parties and their representatives have a right, subject to the restrictions set forth above, to communicate in good faith with a health care professional who has treated or examined an injured worker. If a party provides the requisite notice to the opposing parties and their representatives when contacting a health care professional, any evidence obtained as a result of that contact should be admissible. See Matter of Crucible, WCB #6960 8263 (11/18/02, WL21302359). While a party is required to provide a copy of any written communication to the opposing parties, they need not obtain the opposing party's permission to contact a health care professional. In other words, a claimant cannot preclude the employer/carrier from communicating with his or her treating physician, nor can an employer/carrier prohibit a claimant from contacting an IME it has retained.
Jeffrey R. Sweet