New York: Court Applies Ex Parte Rules Strictly

Illustrating the strictness of New York’s rules forbidding ex parte communications between attorneys and examining physicians in workers’ compensation cases, a state appellate court affirmed a decision by the New York Workers’ Compensation Board that had excluded a medical report and testimony by a physician who failed to turn over to the Board a letter the doctor had received from a claimant’s attorney—the doctor also failed to provide a copy of an intake form that the physician had required the claimant complete prior to the examination. The court observed that prior to the examination by claimant’s independent medical examiner, claimant’s attorney sent the physician—but not the Board nor opposing counsel—a letter that described the issues that claimant had experienced. 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(1)(b) and 12 NYCRR 300.2. The medical evidence was appropriately excluded.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Keller v. Cumberland Farms, 2019 N.Y. App. Div. LEXIS 9113 (3d Dept. Dec. 19, 2019)

See generally Larson’s Workers’ Compensation Law, § 127.05.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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