Employer’s Attorney is not Entitled to Ex Parte Communication with Panel Physicians in Workers’ Compensation Cases

April 17, 2014

A Pennsylvania court recently ruled that an Employer’s attorney may not have ex parte communications with a panel physician, particularly when that physician is an employee of the Defendant. This means that the lawyer cannot talk to your doctor without you or your lawyer’s present, even if the doctor works for your employer!

Under the Pennsylvania Workers’ Compensation Act, when an injured worker reports a work injury to his or her employer, the injured worker must treat with one of the “panel” doctors for a period of 90-days before being allowed to treat with a medical provider of his or her choice. The Act forbids that panel physician from being an employee of the employer, unless the injured worker is made aware of that relationship.

In The Pennsylvania State University v. W.CA.B. (Sox), the court was faced with the question of whether a Judge’s order precluding the attorney for the employer/defendant from meeting or talking to a doctor/expert witness, who was a panel provider and an employee of the employer, was proper. In Sox the Claimant sustained three separate injuries, the last two while under the employ of Penn State University. Claimant treated with panel physicians. The panel physicians were employees of Penn State. During litigation, the Defendant’s attorney scheduled the deposition of two of the panel physicians. Claimant’s counsel objected to the deposition, or in the alternative, requested an order precluding ex parte communications between the employers’ attorney and the treating physicians. The Judge issued an interlocutory order allowing the employer’s attorney to schedule the depositions but precluding the employer’s attorney from communicating with the treating panel physicians without Claimant’s attorney present.

The employer chose to submit medical reports rather than take the depositions under those circumstances. The Judge eventually awarded benefits to the Claimant and the Defendant appealed. This worked its way up to the Commonwealth Court.

While this case discussed a number of issues, the most significant was that of the validity of the Judge’s order precluding the employer’s attorneys from having ex parte contact with the panel physicians, who were also employees of Defendant. On appeal the employer argued that the attorney client privilege applies to communications with the panel physicians because they are employees. In cases where the client is a corporation the attorney-client privilege extends to communications between its attorneys and agents or employees authorized to act on behalf of the corporation. However, the court held, that such attorney-client privilege did not apply under these facts because the “treating physicians were acting in their capacity as treating physicians of Claimant, not as employees of Penn State.” As such they cannot be considered “clients” of employer’s counsel and thus employer’s counsel is not permitted to have ex parte communications with the panel/physicians, who were employees of Penn State. To allow the employer’s attorney to communicate in such a way with the panel physicians would give the employer an unfair strategic advantage, the court said.

Next, the court addressed the application of Rule of Civil Procedure 4003.6 to Workers’ Compensation cases. Under Rule 4003.6 information may be obtained from the treating physician upon written consent of the party or through discovery. The court noted that although the Rules of Civil Procedure are not controlling in Workers’ Compensation cases, they are instructive. Although the statutory physician-patient privilege is waived by the filing of a lawsuit, Rule 4003.6 “does not permit unfettered disclosure” and “it does not permit an employer’s counsel to obtain information in any way he sees fit.” The court expressed concern over the influence that an attorney for the employer may have over an employee/physician. They refused to allow the employer’s attorney ex parte communications with an employee/physician under the auspices of Rule 4003.6.

This decision makes clear that although the employer determines which care providers constitute the list of “panel providers” that said “panel providers” become treating physicians and are subject to the same restrictions on communications as any other treating physicians. This includes restricting an employer’s attorney from having ex parte discussion with a panel physician, especially if the physician is an employee of the Defendant.