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Case # G0209792
Date of Accident: 12/04/2009
District Office: NYC
Employer: Advantage Plumbing
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63872485-305
Date of Filing of Decision: 01/05/2012
Claimant's Attorney: Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on November 15, 2011, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 18, 2011.

ISSUE

The issue presented for Full Board Review is whether the carrier's witnesses should have been precluded from testifying.

In a decision filed on March 22, 2010, the WCLJ precluded the carrier's witnesses' testimony, established the claim for head and neck injuries, and made awards.

The majority of the Board Panel affirmed the WCLJ's findings and denied the carrier's request for an adjournment.

The dissenting Board Panel member would rescind the WCLJ's decision without prejudice and restore the case to the trial calendar for further development of the record because the carrier offered a very reasonable and sufficient explanation for the late appearance of the employer's lay witness.

In its application for Mandatory Full Board Review, the carrier argues that because the employer's lay witness was late due to a work emergency, but still appeared at the hearing point within the time scheduled for the March 17, 2010, hearing, the March 22, 2010, decision should be rescinded without prejudice and the case restored to the trial calendar for the testimony of the employer's witnesses, after which the WCLJ could make a ruling based upon the completed record.

No rebuttal was filed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for a head and neck injury for an alleged accident of December 4, 2009.

On December 15, 2009, the claimant filed a C-3 form claiming he injured his neck and head when he slipped and fell while pumping out a flooded basement on December 4, 2009. Pursuant to this filing, and the medical report filed on December 16, 2009, which contained a history of the accident and a diagnosis of a causally related disability, the Board issued a Notice of Case Assembly on December 22, 2009. On January 8, 2010, the carrier filed a C-7 noting its intent to controvert this matter, raising the issues of accident arising out of and in the course of employment, notice and casual relationship.

On January 20, 2010, the Board issued a Notice of Pre-Hearing Conference/Hearing advising the parties that a hearing in this case was scheduled for February 9, 2010. Within the Notice of Hearing, the Board advised the parties that "[t]en days prior to the Pre-Hearing Conference, each party shall file with the Board a Pre-Hearing Conference Statement."

The carrier had the claimant examined by its consultant on January 28, 2010. After taking a work history and performing an examination, the consultant diagnosed the claimant with a post-cervical strain and opined the claimant has a mild partial disability.

The carrier filed its Pre-Hearing Conference Statement on February 4, 2010, asserting the same defenses listed on the C-7 form and provided the names of two lay witnesses it wished to present for testimony.

At the initial pre-hearing conference/hearing held on February 9, 2010, the WCLJ found prima facie medical evidence for the head and neck and continued the case to March 17, 2010, at 10:30 a.m. for 60 minutes to take testimony of the claimant and two employer witnesses, neither of whom were listed on the carrier's Pre-Hearing Conference Statement. In the corresponding decision filed on February 12, 2010, the WCLJ noted that this claim had been designated to the special part for expedited hearings pursuant to WCL § 25(3)(d) and 12 NYCRR 300.38 and that no adjournments shall be granted except in the case of an emergency.

On March 17, 2010, the claimant testified that his employer dispatched him to perform a boiler shutdown in a sub-basement on December 4, 2009. While pumping out the water, the claimant slipped and fell hitting his neck and shoulder against the back of the sub-floor. The claimant reported the accident to his dispatching supervisor that same afternoon. When the claimant returned to the office, the dispatching supervisor accused him of smelling of marijuana. The claimant denied ever smoking marijuana on the job, including the date of accident. When the claimant returned to work the following Monday, he told another supervisor about his injury. However, before being allowed to work, the claimant was told he had to take a drug test. The claimant refused to take a drug test and the employer terminated his employment. The claimant first sought medical treatment for his accident after the employer terminated his employment. The claimant has not worked since his accident because of the injuries sustained that day.

After the claimant completed his testimony, the WCLJ called to see if any of the employer witnesses were present to testify. No employer witness was present. Based upon the failure of the employer's witnesses to appear for their scheduled testimony, the WCLJ precluded the employer's witnesses' testimony. Based upon the claimant's testimony and evidence contained in the record, the WCLJ established the case for the neck and head, set the average weekly wage at $736.42, found no medical evidence from December 5, 2009, to December 12, 2009, and directed awards from December 12, 2009, to January 28, 2010, at a temporary total rate of $490.95 per week and from January 28, 2010, to March 18, 2010, and continuing at a tentative rate of $235.00 per week. These findings were memorialized in a decision filed on March 22, 2010.

The carrier filed an application for administrative review asserting the WCLJ's decision to establish the claim is premature and requesting further development of the record. The carrier asserted that while its employer witnesses were not present at the time they were called to testify, one of the witnesses arrived after the WCLJ closed the record. Upon appearing before the WCLJ, the WCLJ stated that she would not reopen the case or give the witness another opportunity to appear. Attached to its application for review, the carrier attached e-mail correspondence dated March 17, 2010, and sent at 10:42 a.m., indicating that the employer called to say its witness is on route to the hearing and should be there within 10-20 minutes. The e-mail continued to state that the employer witness was late because he had a work emergency that same morning.

LEGAL ANALYSIS

Although the issue was not raised below, it is noted that the employer's lay witness who arrived late for the March 17, 2010, hearing should not have been allowed to testify pursuant to 12 NYCRR 300.38(f)(4). 12 NYCRR 300.38(f)(4) states that if the a carrier fails to timely file its Pre-Hearing Conference Statement with the Board, it shall result in a waiver of defenses to the claim and if the carrier fails to list a witness on the Pre-Hearing Conference Statement, it shall constitute a waiver of the right to call such witness.

In this case, not only did the carrier file an untimely Pre-Hearing Conference Statement, as it was filed only five days before the Pre-Hearing Conference, but the carrier requested testimony of two witnesses who were not listed on its Pre-Hearing Conference Statement. Therefore, even if the employer's witnesses timely arrived at the March 17, 2010, hearing or provided a valid excuse for failing to arrive at the hearing by 10:30 a.m., the carrier's witnesses' testimony should have been precluded based on 12 NYCRR 300.38(f)(4).

Alternatively, even if the carrier had filed a timely Pre-Hearing Conference Statement listing the witnesses to testify on the employer's behalf, the WCLJ properly denied the carrier's request for an adjournment and precluded the carrier's witnesses from testifying based upon the witness' late arrival at the March 17, 2010 hearing.

12 NYCRR 300.38(j)(1) provides that adjournments for a hearing in a controverted claim shall only be granted in an emergency. 12 NYCRR 300.38(j)(1) defines "emergency" as:

"a serious event that occurs preventing the timely completion of some action ordered or directed by the Board or regulation. An emergency includes death in the family, serious illness, significant prior professional or business commitment, and inclement weather that prevents travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action."

In this case, the carrier stated that the employer's witness did not arrive at the March 17, 2010, hearing by 10:30 a.m., because the witness was dealing with an emergency at work. However, the carrier failed to explain how this claimed emergency fits within the definition detailed above, what the emergency consisted of, or why another employee could not handle on the work emergency. Thus, the carrier's request for an adjournment to allow the employer witness to testify was properly denied.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on March 22, 2010, is AFFIRMED. No further action is planned by the Board at this time.