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Ex Parte Contact: A Reminder

Substitute House Bill 1402 otherwise known as the Ex Parte statute went into effect on July 26, 2009 and so has been around for a while, now. See RCW 51.52.063. The legislation changed long standing public policy and case law that encouraged the free flow of medical information to all the parties in a workers compensation case.  The law prohibits ex parte contact with the opposing sides' health care providers after a notice of appeal (or after witness confirmation for the Department) to the Board has been filed. Note that ex parte contact can still be had with the medical provider on issues not covered on the appeal to the Board.

While this law appears fair on the surface, in reality it impacts employer defense practice more than it does the claimant's bar or the Department. This is because employers and their attorneys typically contact the attending physicians more frequently as part of the day-to-day claim administration or litigation process.  It is rare that a claimant's attorney makes ex parte inquires with an IME physician.

The practical effect of this statute is that increased caution needs to be shown when making contact with a health care provider while a claim is in litigation.  This does not mean that you cannot contact a provider during litigation if the contact is about issues unrelated to the matters on appeal. You can.  However, if you are managing a claim and need to make written contact with a provider on an issue that is at the Board, the statute permits you to do this as long as you have written permission from the claimant or you copy all parties on your written communication to the provider and instruct the provider to provide his or her response to all parties.  

As time has gone on, legal practitioners have come to terms with the practical impact of the statute; however, if you are a claims professional just keep in mind that the statute could impact the manner in which you contact a health care provider on a claim that is in litigation at the Board.

If you have any particular questions about the law, check with your attorney or contact Terry Peterson at terry.peterson@compriskmgt.com for additional information.

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