KEY TAKEAWAYS:

• The New York State Workers’ Compensation Board has established straightforward rules for corresponding with physicians based on neutrality, transparency, and the scope of the communications

• Failure to follow these standards can have significant consequences, ranging from preclusion of medical evidence to criminal liability

• It is important to remember that these standards apply to communications by claimant’s counsel as well as employers and carriers

Insurance carriers and employers involved in New York workers’ compensation claims regularly communicate with physicians. However, New York law imposes strict limits on how those communications may occur. This article explains those boundaries, outlines the mandatory transparency requirements, and describes the consequences of non-compliance.

The key principle is straightforward: any party may communicate with a physician, but only if that communication is neutral, limited in scope, and does not suggest a preferred medical opinion. Any substantive communication must also be disclosed to the Workers’ Compensation Board (the Board), to opposing counsel, and to all parties involved in the claim. These obligations apply equally to claimant’s counsel, employers, carriers, and their representatives.

Quick Reference: What is Allowed vs. What is Prohibited

The following chart summarizes the key standards governing communications with medical professionals in workers’ compensation proceedings. Although this document is written from the employer/carrier perspective, the same rules apply to claimant’s counsel and may support a request for preclusion or other relief where claimant’s counsel fails to comply.

The Rule Against Improper Influence

Under New York Workers’ Compensation Law § 13-a(6), it is a misdemeanor for any person to improperly influence, or attempt to influence, the medical opinion of any physician who has treated or examined an injured employee.

The law also protects a claimant’s right to choose their own authorized treating physician. Separate regulations further specify that no employer or insurance carrier may participate in performing diagnostic tests or attempt to influence the medical opinions of network-affiliated providers.

Courts take these prohibitions seriously. Even the appearance of impropriety can jeopardize a party’s medical evidence. In one case, the Board disqualified a treating physician’s opinion on permanency because a carrier had contacted the doctor to discuss findings without notifying the claimant, creating an appearance of impropriety and potential influence. In another case, a court upheld a finding that a physician’s testimony lacked credibility because it relied on a private letter from counsel that supplied a leading timeline of symptoms and explicitly requested favorable medical evidence.

Transparency and Mandatory Filing Requirements

New York’s workers’ compensation system maintains a strict premium on transparency to prevent improper influence, which is legally classified as a misdemeanor. The foundational rule is that substantive communication with a medical professional must not occur privately or in a manner that leaves any party unaware of the information provided or requested. These standards are designed to ensure that the claims process remains fair, open, and free from even the appearance of impropriety. Two key provisions govern this area:

1. Disclosure of substantive communication. Any substantive communication regarding a claimant – defined as an inquiry initiated outside of a physical examination – is considered a “request for information.” This includes inquiries concerning a claimant’s medical condition, treatment, work capacity, or professional opinions on causal relationship and degree of disability. To maintain transparency, all such written communications should be simultaneously sent to the Board, the claimant, and all legal representatives. Furthermore, practitioners are required by law to submit copies of any such substantive requests they receive to the Board within 10 days of receipt. All written communications with a medical professional must be simultaneously sent to all parties and their representatives. Additionally, ex parte communication is prohibited when that contact is substantive in nature. The rule is reciprocal: claimant’s counsel must provide the same notice and disclosure to employers, carriers, and their representatives.

2. Limited exception. If a substantive communication includes only documents that are already part of the official Board file and available to all parties at the time they are provided to the physician, those items need not be separately filed.

Courts generally look for “substantial compliance” with these requirements rather than demanding rigid adherence to specific form numbers. As long as the claimant and Board receive adequate notice of the substantive information requested, minor procedural omissions about which particular form is used may not invalidate the medical evidence. Nonetheless, best practice is full compliance with all applicable requirements.

Ministerial vs. Substantive Communications: Understanding the Distinction

The Board draws an important line between “ministerial” (i.e., routine, logistical, or administrative) contacts and “substantive” ones. Only substantive communications trigger the filing and disclosure obligations described above.

What counts as substantive? Any communication that touches on the claimant’s medical condition, asks for professional opinions, refers a claimant for examination, or provides medical records for the physician’s review. These must be filed with the Board within ten days and shared with all parties.

What is ministerial? Routine administrative contact, such as confirming a deposition date or noting the general subject of upcoming testimony. These contacts do not require Board filing, though caution is always warranted.

Practical guidance: To stay within proper bounds, all communications should ideally be in writing and sent to all parties simultaneously. Questions should be straightforward, non-leading, and narrowly focused on the information needed. Employers, carriers, and claimant’s counsel may provide factual information or request a status update but must avoid even the appearance of attempting to shape a medical opinion.

Courts have recognized this distinction in practice. In one case, an attorney’s text message to a physician the day before a deposition was found to be ministerial, not substantive, because it merely confirmed the deposition date and identified the general topic. The physician’s testimony was consistent with his earlier report, confirming no improper influence. By contrast, courts have found improper ex parte contact where parties held private meetings or phone calls during which medical records were reviewed or official forms were completed – activities that go well beyond routine scheduling.

Consequences of Non-Compliance

Failing to observe these standards can have serious consequences. Those consequences are not limited to employers and carriers; claimant’s counsel may be held to the same standard, and employers or carriers may request preclusion or other appropriate relief when claimant’s counsel fails to play by the rules:

Preclusion of medical evidence. A medical report or opinion that does not substantially comply with the notice and filing requirements may be ruled inadmissible for determining key issues such as schedule loss of use or degree of disability. “Preclusion” means the evidence is excluded entirely and cannot be considered by the Board in deciding the claim. This remedy may be sought by employers and carriers where claimant’s counsel engages in undisclosed substantive communications or otherwise fails to comply with the applicable rules.

Reduced evidentiary weight. Even short of full preclusion, the Board may give “little or no weight” to medical opinions affected by improper communications, particularly where information conveyed was false or misleading, inquiries were leading, or the contact appeared to violate the law.

Loss of cross-examination rights. If a party or its representatives contact a health care professional without notice to the opposing party, the Board may bar the parties from cross-examining that professional – a significant strategic loss.

Criminal liability and fraud referrals. Improper influence is a misdemeanor. Additionally, it is a fraudulent practice for any employer, carrier, or representative to cause, direct, or encourage a medical report that differs substantially from the practitioner’s actual professional opinion. Such conduct may be referred to the Workers’ Compensation Fraud Inspector General for investigation and potential prosecution.

Practical Takeaways

Employers and carriers should keep the following principles in mind, both for their own communications and when evaluating whether claimant’s counsel has complied with the same standards:

Keep it neutral. All communications with physicians should be straightforward, non-leading, and narrowly focused. Never suggest a preferred answer or conclusion.

Keep it transparent. Any substantive communication must be disclosed to opposing counsel, the claimant, and the Board. Written communications should be sent to all parties simultaneously.

Know the difference between administrative and substantive contact. Confirming a date is generally safe. Discussing medical findings, providing records, or posing questions about a claimant’s condition is substantive and requires full disclosure.

File on time. Substantive written communications with medical professionals should be filed with the Board within the required time period and shared with all parties.

Hold claimant’s counsel to the same standard. If claimant’s counsel has undisclosed substantive contact with a medical professional, uses leading communications, or fails to provide required notice and copies, employers and carriers should consider requesting preclusion, reduced evidentiary weight, loss of cross-examination rights, or other appropriate Board relief.

When in doubt, disclose. The consequences of non-compliance – from evidence preclusion to criminal liability – far outweigh the minimal effort of providing notice and copies to all parties.

If you require further guidance about communicating with doctors in New York workers’ compensation matters, please contact:

• Stephanie N. Argueta
• Kristen L. Romano
• Philip Unwin

Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. It is not intended to create, and receipt of it does not create, an attorney-client relationship. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information contained herein.