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Case # G0182610
Date of Accident: 07/28/2009
District Office: NYC
Employer: Marcus Uptown Designs
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 63693873-365
Date of Filing of Decision: 12/29/2011
Claimant's Attorney: Fogelgaren, Forman & Bergman, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board at its meeting on November 15, 2011, considered the above captioned case for mandatory Full Board Review of the Board Panel memorandum of decision (MOD) filed March 18, 2011.

ISSUE

The issue presented for Full Board Review is whether a WCL § 114-a(3) penalty was properly assessed against the carrier, State Insurance Fund (SIF).

The WCLJ determined that proceedings in this case were instituted or continued on unreasonable grounds and assessed a penalty against SIF in the amount of $1000.00, $500.00 pursuant to WCL § 114-a(3)(i), representing the cost of the proceedings, and $500.00 pursuant to WCL § 114-a(3)(ii) representing reasonable attorney fees.

The Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member determined that a WCL § 114-a(3) was not warranted.

In its application for Full Board Review, SIF asserts that the opinion of the dissenting Board Panel member should be adopted.

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

FACTS

The claimant filed a C-3 (Employee Claim) with the Board on August 3, 2009, alleging work related injuries to the back, chest, head, ribs, left leg and left foot as a result of a July 28, 2009, accident while he was employed as a construction worker.

The claimant began treatment with Drs. Madhu Boppana and Jeffrey Kaplan, both of whom are of the opinion that the claimant is totally disabled.

In an IME 4 (Practitioner's Report of Independent Medical Examination) dated November 19, 2009, the carrier's consultant, Dr. Robert Michaels, diagnosed the claimant with a lumbar sprain, a resolved bilateral arm sprain, a left rib sprain/contusion and a resolved right rib sprain/contusion. Dr. Michaels opined that the claimant's injuries are causally related, that he requires further physical therapy and that the claimant has a mild degree of disability. Dr. Michaels additionally opined that the claimant may work with restrictions of no repetitive bending and no heavy lifting greater than thirty pounds.

At a hearing held on April 23, 2010, the WCLJ established the instant claim for injuries to the claimant's rib cage, back and neck, set the claimant's average weekly wage at the tentative rate of $450.00, authorized medical treatment and physical therapy, and after an off the record discussion, issued awards to the claimant from July 29, 2009, to November 19, 2009, at the tentative rate of $300.00, from November 19, 2009, to January 21, 2010, at the tentative rate of $150.00, and from January 21, 2010, to date, and continuing, at the tentative rate of $200.00 pursuant to the off-the-record discussion of the parties. The claimant then testified that he has not worked since his July 28, 2009, accident date and has sustained no further accidents. The WCLJ concluded the hearing by awarding a $1,400.00 fee to the claimant's attorney.

A decision was filed on April 28, 2010, memorializing the findings reached by the WCLJ at the April 23, 2010, hearing.

In an IME-4 dated April 29, 2010, the carrier's consultant, Dr. Michaels, determined that the claimant has a mild degree of disability, that he requires continued orthopedic care, and that no further physical therapy is indicated as such treatments to date have not been successful in significantly alleviating the claimant's complaints.

In an addendum dated May 19, 2010, Dr. Michaels opined that the need for trigger point injections and epidural steroid injections is appropriate and should be approved as requested.

In an RFA-2 dated May 17, 2010, and filed with the Board on May 20, 2010, SIF contends that continuing payments to the claimant should be reduced to $100.00 per week based on the April 29, 2010, IME-4 of Dr. Michaels indicating that the claimant has a mild disability.

At a hearing held on June 28, 2010, the claimant testified that he has not worked since sustaining his July 28, 2009, work related injuries and has filed a third party action that has not yet settled. The WCLJ compared the November 19, 2009, IME-4 of Dr. Michaels to the April 29, 2010, IME-4 of Dr. Michaels, and determined that there was no change in the doctor's opinion. The WCLJ assessed a $1000.00 penalty against SIF pursuant to WCL § 114-a(3)(i) and (ii). SIF objected to the assessment of a WCL § 114-a(3) penalty, arguing that proceedings were properly continued as a hearing was necessary in order to authorize the requested trigger point injections. The WCLJ determined that since Dr. Michaels approved these treatments, that a hearing was not required. The WCLJ concluded the hearing by updating awards at the prior tentative rate of $200.00, authorizing trigger point injections and epidural steroid injections, and awarding an attorney fee in the amount of $90.00.

A decision was filed on July 1, 2010, memorializing the findings reached by the WCLJ at the June 28, 2010, hearing.

LEGAL ANALYSIS

WCL § 114-a(3) provides that:

If the board or any court having jurisdiction over proceedings in respect of any claim for compensation determines that the proceedings in respect of such claim, including any appeals, have been instituted or continued without reasonable ground:

  1. the cost of such proceedings shall be assessed against the party who has so instituted or continued the proceedings, which shall be payable to the Board for administrative expenses pursuant to section 151 of this chapter;
  2. reasonable attorneys' fees shall be assessed against an attorney or licensed representative who has instituted or continued proceedings without reasonable grounds, which assessment shall be payable to the board for administrative expenses pursuant to section one hundred fifty-one of this chapter. Fees awarded under this provision may not be recouped from the party, and
  3. such assessments shall be in addition to any other penalty permitted under this chapter.

The Full Board finds, upon review of the evidence of record, that the assessment of a WCL § 114-a(3)(i) penalty in this case was appropriately reached as SIF has continued proceedings in this claim without reasonable grounds. The April 28, 2010, decision awarding the claimant benefits at the tentative weekly rate of $200.00 was arrived at following an agreement by the claimant, who was armed with medical evidence indicating a total disability, and SIF, who had the November 19, 2009, IME-4 of Dr. Michaels indicating a mild disability. SIF filed an RFA-2 on May 17, 2010, based on the second IME-4 filed by Dr. Michaels again indicating a mild disability, but stating that physical therapy was no longer indicated. SIF contends that the imposition of the WCL § 114-a(3) penalty is not warranted as its RFA-2 was filed based on medical evidence of a lesser degree of disability. However, the new medical evidence relied upon by SIF, namely the April 29, 2010, IME-4 of Dr. Michaels, indicates: (1) that claimant remains mildly disabled, (2) that physical therapy is no longer required, not because the claimant's condition has improved as a result of it, but because this treatment mode has not resolved the claimant's condition, and (3) that the claimant still requires ongoing medical treatment for his causally related conditions in the form of the orthopedic care recommended and authorized by Dr. Michaels. The May 19, 2010, addendum filed by Dr. Michaels also indicates the need for additional treatment in the form of trigger point injections and epidural steroid injections. The opinions of Dr. Michaels relied upon by SIF in requesting a hearing to consider reducing claimant's tentative rate of compensation were not meaningfully different from Dr. Michaels' earlier reports which were previously considered, and do not reflect a change in claimant's degree of disability.

The Full Board however, finds that SIF should be liable for costs in the amount of $500.00 pursuant to WCL § 114-a(3)(i), and that attorney's fees under WCL § 114-a(3)(ii) are not applicable herein. The Board Panel majority affirmed the WCLJ decision, but stated in the Legal Analysis of its MOD that "the carrier was correctly assessed a penalty in the amount of $500.00 pursuant to Workers' Compensation Law § 114-a(3)(i)," ignoring the WCLJ's additional assessment of attorneys' fees pursuant to WCL § 114-a(3)(ii) against SIF in the amount of $500.00. While costs under WCL § 114-a(3)(i) may be assessed against a party, including a carrier, attorney's fees may only be assessed "against an attorney or licensed representative" pursuant to WCL § 114-a(3)(ii). Because the proceedings in this matter were continued without reasonable ground based on the actions of a party to this matter (SIF) in violation of WCL § 114-a(3), costs are properly assessed against SIF pursuant to WCL § 114-a(3)(i), but not attorneys' fees pursuant to WCL § 114-a(3)(ii).

CONCLUSION

Accordingly, the WCLJ's decision filed on July 1, 2010, is MODIFIED rescind the assessment of reasonable attorneys' fees against SIF pursuant to WCL § 114-a(3)(ii), but is otherwise affirmed. The case is continued.