Employer Attorneys have Duty to Provide Copy of Medical Report
Dayton Bar Assn. v. Korte (11/15/06), 111 Ohio St.3d 273, 2006-Ohio-5705.
Issue: Did employer’s attorneys violate the disciplinary rules which govern lawyers when they failed to provide a favorable medical report to the claimant and BWC/IC?
Background: A teacher filed a workers’ compensation claim which was initially allowed for physical conditions. The teacher then sought to have the claim additionally allowed for “generalized anxiety disorder.” The motion the teacher filed stated that “the claimant would be willing to accept whatever psychological/psychiatric diagnosis is found upon evaluation by the Bureau’s independent medical examiner.”
A law firm representing the employer sought an opinion from Dr. F about the teacher’s condition. The lawyer who sought the opinion requested Dr. F to give an opinion about whether the teacher suffered from generalized anxiety disorder or any other psychological condition.
Dr. F found that the teacher did not suffer from generalized anxiety disorder or major depression. Dr. F did find that the teacher had a work-related condition of “adjustment disorder with mixed emotional features.”
Even though O.A.C. 4123-3-09(C)(5)(a) requires an employer who has a claimant examined to provide a copy of that report to the BWC/IC and the claimant’s representative “upon the employer’s receipt of the report”, the employer’s attorneys did not do so.
Instead, on receipt of the report from Dr. F, another attorney representing the employer believed that the finding of “adjustment disorder with mixed emotional features” was “gratuitous” and instructed the first attorney to request a more limited report.
The initial attorney requested a report from Dr. F which only addressed the anxiety disorder and major depression. Dr. F then provided such a limited report, as well as a follow-up report which was also limited.
The employer’s attorneys provided the follow-up reports to the claimant’s representative and the BWC/IC. The BWC and DHO initially allowed the claim for “generalized anxiety disorder” and “depressive psychosis.”
The employer procured another report from Dr. F, in the words of the Supreme Court “emphatically concluding” that the teacher did not have either of the conditions at issue and indicating that the claimant was malingering. The employer’s attorneys also provided a copy of this report to the claimant’s representative and the BWC/IC, while still failing to provide the initial report from Dr. F which indicated that the claimant did suffer from a work-related psychological condition.
Based in part on the additional report from Dr. F, the SHO denied the claim. After the Industrial Commission refused further appeal, the teacher appealed to Court.
By this time, the claim was outside of the school district’s experience (which means that it no longer affected the school district’s workers’ compensation premiums), so the employer no longer was concerned about the claim. As a result, the Attorney General’s office defended the claim instead of the employer’s attorney.
During a deposition of Dr. F, the initial report he had provided (which indicated that the teacher did suffer from a psychiatric condition as a result of work) was discovered. Dr. F also changed his previous “emphatic conclusion” and agreed that the teacher suffered from work-related “generalized anxiety disorder and major depressive disorder.” The Supreme Court states that this apparently resulted in an agreed entry allowing those conditions.
On October 12, 2004, the Dayton Bar Association charged the two attorneys who had represented the employer administratively with three violations of the code of ethics. The Bar Association claimed that the attorneys’ failure to provide the initial medical report from Dr. F as required by O.A.C. 4123-3-09(C)(5)(a) violated the following attorney disciplinary rules:
- Rule 7-102(A)(3), which prohibits “a lawyer from concealing or knowingly failing to disclose that which a lawyer is required by law to reveal”;
- Rule 1-102(A)(4), which prohibits “a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation”; and
- Rule 1-102(A)(5), which prohibits “a lawyer from engaging in conduct that is prejudicial to the administration of justice.”
The Dayton Bar Association eventually agreed with the employer’s attorneys that the employer’s attorneys had violated a different rule, Rule 1-102(A)(6), “engaging in conduct adversely reflecting on a lawyer’s fitness to practice law.” The parties further agreed that a public reprimand was an appropriate sanction.
Decision: In determining the proper sanction, the Board of Commissioners on Grievance and Discipline (“Board”) considered both aggravating and mitigating circumstances. The Board found no aggravating circumstances.
In mitigation, the Board found that the employer’s attorneys had no prior discipline problems and “did not act out of self-interest or dishonesty.” The employer’s attorneys also fully cooperated during the disciplinary proceedings. The Board also found that the language of the teacher’s request, seeking “whatever psychological/psychiatric diagnosis is found upon evaluation” was unusual, and therefore also a mitigating factor. The Board recommended a public reprimand.
On review, the Supreme Court adopted the Board’s recommendation that a public reprimand be issued to David Korte and Michelle Bach, the employer’s attorneys.
The Supreme Court issued the public reprimand for violations of Rule 7-102(A)(3) [prohibits “a lawyer from concealing or knowingly failing to disclose that which a lawyer is required by law to reveal”] and Rule 1-102(A)(5) [prohibits “a lawyer from engaging in conduct that is prejudicial to the administration of justice”].
Editor’s Comment: Hopefully this will serve as a reminder to employer’s representatives of their duty to provide medical reports to claimants and the BWC even when those reports are favorable to the claimant.