New York: Ex Parte Communications Result in Denial of Death Benefits Claim

A WCLJ’s decision to give no weight to medical opinions offered by two medical experts—an independent medical examiner and the deceased employee’s treating physician—because both experts had entered into significant ex parte contact with claimant’s attorney was affirmed by a state appellate court. Without that medical evidence, the Board agreed with the WCLJ that the claimant had failed to show a causal connection between the employment and the employee’s death. The court noted that 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. That level of contact could not be classified as “ministerial,” indicated the court.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and 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 Goutermout v. County of Oswego, 194 A.D.3d 1333 (3d Dept., May 27, 2021)

See generally Larson’s Workers’ Compensation Law, § 127.11[3][a], note 4.

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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