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October 31, 2002
Ex-parta Communications in Worker's Compensation
Expressed opinion by Michael A. Kerstetter, PFIW
Dauphin County
Ex-parte communication
is one of the worst aspects of the Pennsylvania Worker's Compensation system.
It is strongly
encouraged by the Pennsylvania Worker's Compensation Bureau. The
justification behind ex-parte communication is that it cuts down on the expense
and time it takes for an employer/worker's compensation insurance company to
get medical information about an injured worker. Just in case you were
wondering, ex-parte is defined the following way:
ex-parte -
1. Law. From or on one side only, with
the other side absent or unrepresented. 2. From a one sided or strongly
biased point of view.
Why this is even allowed in a workers compensation claim is beyond me.
All communications should be upfront and not hidden from either party of the
worker's compensation litigation. According to
section 1404 of the Pennsylvania Worker's
Compensation Act 57, Referees/Judges are not permitted to participate in ex-parte
communications but yet all other parties to a claim are permitted to use this
form of communication.
Ex-parte communication is abused by employers/worker's compensation insurance
companies and their hired experts in the following manner:
- When a hired expert contacts an injured worker's treating physician they
claim to be working on behalf of the injured worker. This is a lie they
are working for the employer/worker's compensation insurance company.
This is a form of fraud, it is misrepresentation. By doing this the
treating physician may tend to be more cooperative when asked for something,
like a work release even though the injured worker did not ask for it.
Here is how they do it: They contact the doctor and say something like this
"Mr. or Ms. X would like to return to work and have asked me to contact you to
get a work release for them to do so". That is a fraudulent statement!
The Pennsylvania Worker's Compensation Bureau supports this kind of action
taken by an employer/worker's compensation insurance company because they do
not instruct the Referees to ignore evidence that is gathered using this
course of action. The PFIW Dauphin County Chapter contacted the Director
of the Workers Compensation Bureau about this issue and we were told in so
many words that they could not do anything about this abuse. In my
opinion they did not want to do anything!
- Hired experts of employers/worker's compensation insurance companies also
use ex-parte communication to obtain medical records of an injured worker in
order to defend itself from the litigation in a workers compensation claim.
They are supposed to ask the injured worker's attorney for the information and
it is the duty of the attorney to supply it. This is never done!
They just go directly to the physician. There is really no problem with
this except the hired experts also use this opportunity to send surveillance
videotapes and reports to the treating physician with the expressed purpose of
convincing the doctor to change his/her opinion about an injured workers
medical condition. Fraudulent or exaggerated information is often sent
to the treating doctor. If the doctor happens to believe this bogus
information it can leave an injured worker with medical records tainted with
fraud. This happens everyday, it happened to me.
- Hired experts of employers/worker's compensation insurance companies also
use ex-parte communication to contact perspective employers about an injured
worker and tell them nothing about the disability or disabilities that may
prevent the employer from hiring the injured worker. This is a form of
fraud by omission. The injured worker ultimately pays the price for this
practice down the road when fired for withholding information about a
pre-existing work related disability.
It doesn't appear as though the best interest of the injured worker is being
looked out for when these so called experts use ex-parte communication to
discredit an injured worker. This type of communication only benefits the
employer/worker's compensation insurance company's need to reduce it's expense for
being responsible for a work related injury. Ex-parte communication just
allows them to perpetrate fraud behind the scene and remain unaccountable for their
actions.
Where is the protection for the Injured Worker?
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