MEMORANDUM AND ORDER
Appeal from a decision of the Workers Compensation Board, filed December 31, 2019, which, among other things, disallowed claimants claim for workers compensation death benefits.
Claimants husband (hereinafter decedent) died after suffering a cardiac incident at work, and claimant subsequently filed a claim for workers compensation death benefits. Stephen Nash, an independent medical examiner, provided a medical report and deposition testimony opining that decedents death was causally related to his employment.
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Also in connection with the claim, Karl Hafner, who, as decedents treating physician, filled out the C–64 proof of death form, testified as to the causal connection between decedents employment and his death. During their deposition testimony, however, it was disclosed that both Nash and Hafner had ex parte communications with claimants counsel.
Following submission of memorandum of law by the parties, the Workers Compensation Law Judge (hereinafter WCLJ) found that the ex parte communication with Nash and Hafner was extensive and gave no weight to their medical opinions. Turning to the merits, the WCLJ disallowed the death benefit claim due to the lack of sufficiently supporting medical evidence that decedents death was causally related to his employment. Upon administrative appeal, the Workers Compensation Board adopted the WCLJs findings and affirmed the decision. Claimant appeals.
We affirm. Workers Compensation Law § 13–a (6)(a) prohibits “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.” Workers Compensation Law § 137(1)(b) provides that, “[i]f 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 [B]oard within [10] days of receipt of the request.” “Request for information, for purposes of Workers Compensation Law [§ ] 137(1)(b), ․ means any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person or entity ․ that takes place or is initiated outside of the independent medical examination, including ․ 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 examiners professional opinion with regard to the claimant or the examination” (12 NYCRR 300.2[b][11]; see Matter of Keller v. Cumberland Farms, 178 A.D.3d 1260, 1261, 115 N.Y.S.3d 536 [2019], lv denied 35 N.Y.3d 912, 2020 WL 5182102 [2020]).
In response to various inquiries, the Board also issued Subject No. 046–124, which provides that every effort should be made to avoid even the appearance of attempting to influence the opinion of a health care professional (see Matter of Knapp v. Bette & Cring LLC, 166 A.D.3d 1428, 1429–1430, 87 N.Y.S.3d 745 [2018]). To that end, Subject No. 046–124 notes that, depending on the nature of the communication, the WCLJ or Board may choose to afford no weight to the evidence provided by the health care professional.
We are unpersuaded by claimants contention that the Board abused its discretion in failing to give any weight to the medical opinions of Nash and Hafner. There is no dispute that both Nash and Hafner had ex parte communications with claimants counsel. Nash testified that, on the day before the deposition, he met with claimants counsel at counsels office for an hour to review records and discussed the basics of what the deposition would entail. Hafner testified that, in his contact with claimants counsel, he and claimants 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. The relevant statutes and regulations make clear that parties are to be notified of substantive communication with medical professionals (see Workers Compensation Law §§ 13–a, 137; 12 NYCRR 300.2). Given the extensive nature of the communications, which involved review of medical records and discussions regarding the completion of forms, we are unpersuaded by claimants contention that the Board erred in not finding such communication to be ministerial (cf. Matter of Knapp v. Bette & Cring LLC, 166 A.D.3d at 1430, 87 N.Y.S.3d 745). Furthermore, considering the nature of the extensive ex parte communications, we find no reason to disturb the Boards discretionary determination to give no weight to the medical opinions of Nash and Hafner, notwithstanding claimants contention to the contrary (cf. id.).
To the extent that claimant asserts that the Boards determination should be reversed because Subject No. 046–124 is unconstitutional, we note that the Boards decision was not strictly based upon the Subject No. 046–124, but on the applicable forementioned statutes and regulations regarding communication with the independent medical examiners and other medical professionals. Furthermore, as we have previously noted, “[i]n our view, Subject No. 046–124 comports with the Boards obligation to ensure the integrity of independent medical examinations and the Boards administrative and discretionary authority” (Matter of Knapp v. Bette & Cring LLC, 166 A.D.3d at 1430, 87 N.Y.S.3d 745). Claimants remaining contentions are without merit.
ORDERED that the decision is affirmed, without costs.
FOOTNOTES
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. Nashs initial medical report, which also found a causal relationship between decedents death and his employment, was precluded because the medical documentation reviewed in connection with his report was not properly filed with the Workers Compensation Board.
Garry, P.J.
Egan Jr., Lynch and Colangelo, JJ., concur.