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Workers’ Compensation – Due Process (2018)

Most of the issues in the workers’ compensation system are concerned with the nature of the injury, the extent of the disability, or the need for medical treatment. The injured worker’s treating doctor files a medical report with an opinion about the issue, and the insurance company often responds by having the person examined by an “independent medical examiner” (an insurance company medical consultant) who usually has a different opinion.

When this happens, litigation – testimony by the doctors about their opinions – is often needed. When a case is litigated, each side has the opportunity to subpoena the opposing side’s doctor and to ask questions about his or her reports.

In this case, the injured worker’s treating doctor did not appear to be questioned (“deposed”) about a request for surgery. Instead of deciding that the insurance company failed to do what it was supposed to do, the Workers’ Compensation Board ruled that our office had delayed the case by “not having [the doctors] available for cross-examination” – and imposed a penalty against the law firm.

We appealed this decision and the Appellate Division, Third Department held that (1) the Board cited the wrong provision of the law in imposing a penalty; and (2) there was no basis for a penalty even if it had cited the correct section of the law; because (3) it is the obligation of the insurance company, not the injured worker or his or her attorney, to subpoena the treating doctors for a deposition. The Court therefore reversed the Board and imposed an important legal obligation on employers and insurance companies.

Read the Murtha decision here.


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