Undisclosed text message does not bar doctor testimony: Court

The Appellate Division of the Supreme Court of New York ruled Thursday that the state Workers’ Compensation Board abused its power when it eliminated from the record an injured worker’s medical examination report because the worker’s lawyer failed to disclose text-message communication examination between him and the doctor.

After claimant suffered a work-related injury in 2010, he was awarded workers compensation benefits and was determined to have a 40.5% schedule loss of use of his left foot. In June 2015, on due notice to the employer and the Workers' Compensation Board, his attorney wrote to an independent medical examiner, and sent text messages, requesting that he update his earlier assessment of claimant's loss of use of his left foot, according to documents in Robert G. Knapp v. Bette & Cring LLC, Workers’ Compensation Board, filed in the Appellate Division’s Third department in Albany.

Following the examination, the doctor filed a letter report with the Workers’ Compensation Board finding an 88% schedule loss of use. Upon receipt of the report, the Board reopened the case and a doctor on behalf of the employer performed an independent medical examination and found a 50% schedule loss of use, records state.

Following a hearing, the Workers' Compensation law judge considered the opinions of both physicians and found no change in claimant's condition to warrant an increase in the schedule loss of use award. On review, the board credited the second doctor’s opinion and granted an increase of claimant's schedule loss of use award to 50%. In its finding, the board precluded the first doctor’s report and deposition testimony pursuant to state law, which “requires a party or his or her representative to provide a copy of any written communication with a health care professional to the opposing parties and their representative,” documents state.

The worker then appealed, challenging the preclusion of the first doctor’s report and testimony, which was precluded on the basis that the employer’s attorney did not receive a copy of the text-message communication between the injured worker’s lawyer and the doctor, according to record.

In a split decision, the three-judge Appellate Court panel concluded “that the Board's decision to preclude (the initial) report and deposition testimony based on what the Board considered an appearance of impropriety was unwarranted and constitutes an abuse of discretion. Accordingly, we remit the matter to the Board for a determination based on the full record, including the report and testimony of (the first doctor),” according to the ruling.

One of the judges dissented, writing: “The issue here distills to who bears the burden of creating a record to ensure that the parties meet the goal of (state law) — to avoid not only improper influence but even the appearance of impropriety by requiring parties to provide opposing parties with a copy of any written communication with a health care professional.”

“The majority states that the text message interaction ‘appears to be a limited communication’ (emphasis added) because, after (the first doctor) testified that claimant's attorney sent him a text message the day before his deposition, the employer's attorney did not ask follow-up questions or request that claimant produce a copy of the text message.”