Case # 60706482
Date of Accident: 07/06/2007
District Office: Syracuse
Employer: Tect-Utica Corporation
Carrier: Zurich American Insurance Co.
Carrier ID No.: W228001
Carrier Case No.: 2450095843
Date of Filing of Decision: 09/10/2012
Claimant's Attorney: Alex C. Dell Esq.
Panel: Robert E. Beloten

The Full Board, at its meeting held on July 17, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on September 1, 2012.

ISSUES

The issues presented for Mandatory Full Board Review are:

1. whether Full Board Review is mandatory;
2. whether the report of the claimant's consulting physician, Dr. Shankman, should be precluded;
3. whether the report of the carrier's consulting physician, Dr. Paarlberg, should be precluded, and:
4. whether the claimant should be referred to an impartial medical specialist.

The WCLJ found that the claimant suffered a 25% schedule loss of use of the fourth finger.

The Board Panel majority precluded the report of Dr. Paarlberg, finding that the report was not "properly filed and distributed in compliance with Workers' Compensation Law § 137." The majority did not preclude the report of Dr. Shankman, finding that the carrier did not timely raise the issue of the admissibility of the report. Finally, based on the inconsistency between the opinions expressed by Drs. Jones and Ortega (no permanency) and Dr. Shankman (25% schedule loss of use of the right hand), the majority referred the claimant to an impartial medical specialist.

The dissenting Board Panel member found that Dr. Shankman's report constituted sufficient evidence to support a finding that the claimant suffers from a 25% schedule loss of use of the right hand, in light of the fact that the carrier's consultant's report was precluded.

In the claimant's application for Mandatory Full Board Review, he argues that he should be awarded a 25% schedule loss of use of the hand.

In rebuttal, the carrier argues that because the Board Panel majority referred the claimant to an impartial specialist, Full Board Review is not mandatory. The carrier further argues that the Board Panel majority's referral of the case to an impartial specialist should be sustained, that the report of Dr. Shankman should be precluded, and that the report of Dr. Paarlberg should be considered by the Board.

FACTS

The claimant suffered a work-related "boxer's fracture" of the fifth metacarpal of his right hand on July 6, 2007. The case was established for an injury to the right hand and the claimant was awarded wage benefits in a Notice of Decision (NOD) filed January 28, 2008.

The claimant sought treatment at Faxton-St. Luke's Heathcare Urgent Care, on July 9, 2011, where he was examined by Dr. Sloan. In the resulting C-4 report, Dr. Sloan noted that the claimant's injury would not result in a permanent restriction.

The claimant was also examined by Dr. Ortega on July 10, 2007, July 12, 2007, August 6, 2007, and August 29, 2007. Dr. Ortega filed Form C-4s for each of these examinations, and indicated that the claimant's injury would not result in a permanent restriction.

The claimant's attorney requested the opinion of Dr. Shankman regarding whether his condition was amenable to schedule loss of use. Dr. Shankman examined the claimant on December 17, 2009, and noted that the claimant previously had right shoulder surgery in 2008, and right elbow surgery in 2009. Dr. Shankman noted in his report that claimant exhibited wrist dorsiflexion and volar flexion of 60 degrees, 20 degrees radial and 20 degrees ulnar deviation. The claimant exhibited intact range of motion in the digits and no weakness or swelling. Dr. Shankman opined that the claimant suffers from a 15% schedule loss of use of the right hand based upon decreased dorsiflexion and volar flexion, and 10% schedule loss of use of the right hand for loss of lateral wrist motion, for a total hand schedule loss of use of 25%.

Dr. Shankman testified by deposition on July 21, 2010, that because the bone claimant fractured is located in the hand, a hand schedule loss of use is appropriate. Dr. Shankman noted that he performed active range of motion testing, which showed decreased range of motion in the right wrist, but he did not test the left hand.

The carrier's consultant, Dr. Paarlberg, examined the claimant on January 25, 2010. Dr. Paarlberg noted mildly restricted motion with flexion, and mild restriction at the MP joint. He noted that the claimant could fully flex his right fourth finger. Dr. Paarlberg opined that the claimant suffers from a 25% schedule loss of use of the fourth finger. The record reflects that the report of Dr. Paarlberg's January 25, 2010, examination was not received by the Board until March 1, 2010.

At a hearing on May 28, 2010, the claimant's attorney argued that Dr. Paarlberg's report should be precluded because it was not filed with the Board as required by WCL § 137. The WCLJ directed that the carrier produce by June 24, 2010, an affidavit from the IME vendor that sent Dr. Paarlberg's report to the Board. The WCLJ also directed the parties to depose Drs. Shankman and Paarlberg, and submit transcripts and memoranda of law by August 1, 2010.

Dr. Paarlberg testified by deposition on July 13, 2011, that the 1996 Medical Guidelines do not address how to assess a schedule loss of use for fracture of the fifth metacarpal. He measured range of motion in the finger, but not the hand, because the metacarpal bones do not move. Therefore, a hand schedule would not be appropriate. Dr. Paarlberg also testified that he noted no loss of range of motion in the wrist.

On June 16, 2010, the Board received a notarized letter from the president of the IME vendor that sent Dr. Paarlberg's report to the Board, stating that, according to the vendor's business records, copies of Dr. Paarlberg's January 25, 2010, report were mailed to the Board and all parties of interest on January 27, 2010.

In his memorandum of law dated July 22, 2010, claimant argued that claimant should be awarded a 25% schedule loss of use of the hand based on the opinion of Dr. Shankman. The claimant's attorneys did not argue in their memorandum of law that Dr. Paarlberg's report and testimony should be precluded.

In the carrier's memorandum of law dated August 2, 2010 (the date set for submission of deposition transcripts and memoranda of law was August 1, 2010), it argued for the first time that Dr. Shankman's report should be precluded because it did not comply with WCL § 137, and that the claimant should be awarded a 25% schedule loss of use of the hand.

In a reserved decision filed August 16, 2010, the WCLJ, relying on the opinion of Dr. Paarlberg, found that the claimant suffers from a 25% schedule loss of use to the right fourth finger, and that he already received benefits in excess of the scheduled award. The WCLJ did not address the issue of whether Dr. Paarlberg's report complied with WCL § 137. The WCLJ found that "[b]ecause Dr. Shankman's opinion was rejected on the merits, whether or not it was produced in violation of § 137 is moot."

LEGAL ANALYSIS

The Claimant's Application for Mandatory Full Board Review

WCL § 23 provides that "if the decision or determination was that of a panel of the board and there was a dissent from such decision or determination other than a dissent the sole basis of which is to refer the case to an impartial specialist, any party in interest may within thirty days after notice of the filing of the board panel's decision…make application in writing for review thereof by the full board." In the present case, the basis for the dissent was a finding that the claimant suffered a 25% schedule loss of use of the hand. The Board Panel majority, not the dissenting member, referred the case to an impartial specialist. Therefore, Full Board Review is mandatory.

Dr. Shankman's Report

12 NYCRR 300.13(a) requires that an "application [for review] must make reference to the record below or such part thereof as is relevant to the issues and grounds raised in such application and indicate where they were raised before the Workers' Compensation Law Judge." 12 NYCRR 300.13(e) provides that "[t]he board panel may deny review: … (iii) of any issues raised in the application that were not raised before the Workers' Compensation Law Judge."

Here, the carrier did not raise the issue of the admissibility of Dr. Schankman's report before the WCLJ at the underlying hearing on May 28, 2010, at which time the WCLJ directed the parties to depose Drs. Paarlberg's and Schankman and submit deposition transcripts and memoranda of law by August 1, 2010. The carrier did not raise the issue until it filed its memorandum of law on August 2, 2010, after the deadline imposed by the WCLJ for submission of memoranda, and well after the deposition of Dr. Shankman was taken. Had the carrier raised the issue of the admissibility of Dr. Schankman's report before the WCLJ at the underlying hearing on May 28, 2010, the claimant would have had the opportunity to set forth his position on the issue, and the WCLJ could have directed development of the record, or rendered a decision at the time of the hearing. Therefore, Dr. Shankman's report is not precluded because the carrier did not timely raise the issue for review.

Dr. Paarlberg's Report

WCL 137(1)(a) directs that each report of independent medical examination "be submitted by the practitioner on the same day and in the same manner to the board, the insurance carrier, the claimant's attending physician or other attending practitioner, the claimant's representative and the claimant." The written report of independent medical examination is to be filed with the Board and copies furnished to the other specified entities and individuals within ten business days after the examination (12 NYCRR 300.2[d][11]). "A written report is filed with the Board when it has been received by the Board pursuant to the requirements of the Worker's Compensation Law" (id.). A report that does not substantially comply with the requirements of WCL 137 and the rule is not admissible as evidence in a workers' compensation proceeding (12 NYCRR 300.2[d][9]).

Claimant timely raised the issue of the admissibility of Dr. Paarlberg's at the hearing on May 28, 2010. The report based upon Dr. Paarlberg's January 25, 2010, examination of the claimant was received by the Board on March 1, 2010, far beyond the ten business days mandated by 12 NYCRR 300.2(d)(11). While the president of the IME vendor that sent Dr. Paarlberg's report to the Board stated in a notarized letter that, according to the vendor's business records, copies of Dr. Paarlberg's January 25, 2010, report were mailed to the Board and all parties of interest on January 27, 2010, this is insufficient to prove that the report was "received by the Board" as required by 12 NYCRR 300.2(d)(11). Therefore, the report of Dr. Paarlburg is precluded.

Referral to an Impartial Specialist

"The Board clearly has the authority to appoint an impartial specialist during the review process (see, Workers' Compensation Law § 13[e]; see, e.g., Matter of Gullo v Southern Erie Clinical Servs., 258 AD2d 689), and its decision whether to do so in a particular case involves the exercise of discretion (see generally, Matter of DeBlasio v New York City Dept. of Highways, 246 AD2d 837, lv denied 91 NY2d 813; Matter of Li Greci v Greene, Tweed & Co., 17 AD2d 673, lv dismissed 12 NY2d 644, cert denied 372 US 977)" (Matter of Zingler v Eastman Kodak Co., 288 AD2d 564 [2001]).

In the present case, Dr. Sloan and Dr. Ortega both opined that the claimant's injuries would not result in a permanent restriction. However, both opinions were rendered shortly after the claimant's injury, and therefore where too early to be dispositive of the issue of whether the claimant suffers from a permanent impairment at present. Dr. Schenkman found that claimant's condition was amenable to a 25% schedule loss of use of the hand.

Therefore, the Full Board finds that, in the interest of justice, claimant is to be referred to an impartial specialist for determination of whether the claimant suffers from a schedule loss of use to the hand or the finger.

CONCLUSION

ACCORDINGLY, the Full Board finds that the report of Dr. Paarlburg is precluded and the report of Dr. Shankman is not precluded. Furthermore, the case is referred to the Chair of the Workers' Compensation Board for the designation of an impartial orthopedic specialist to examine the claimant, review the record, and issue a report. The parties are to be allowed an opportunity to cross-examine the doctor on the impartial specialist's report. The minutes are to be transcribed and the case returned to the Board Panel for decision.

The request for review of the WCLJ decision filed August 16, 2010, is HELD IN ABEYANCE pending completion of further development of the record as directed herein. Upon completion of the impartial specialist examination, the filing of that physician's report, and the opportunity for cross-examination of that physician, the case shall be referred back to the Board Panel for a determination of the issue set forth within the application for Board review. Pending completion of the record as directed herein, no further action is planned at this time.