The Full Board, at its meeting held on March 20, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on March 18, 2011.
The issue presented for Mandatory Full Board Review is whether the carrier's independent medical examination report should be precluded for failure to serve a copy upon the claimant's attorney when the claimant's attorney failed to serve a copy of the Notice of Retainer upon the carrier.
In a notice of decision (NOD) filed June 14, 2010, the Workers' Compensation Law Judge (WCLJ) established the claim for injuries to the back and both shoulders, set the average weekly wage at $615.82, and precluded the carrier's independent medical examination report for failure to serve a copy upon the claimant's attorney in accordance with WCL § 137.
The Board Panel majority affirmed the NOD, finding the carrier's consultant's report inadmissible because a copy was not sent to the claimant's counsel.
The dissenting Board Panel member found the WCLJ erred in precluding the consultant's report. The dissenting Board Panel member noted that the carrier was not notified of the claimant's representation, and therefore substantially complied with WCL § 137 by serving a copy of the consultant's report upon the claimant.
In the carrier's application for Full Board Review, it argues that it substantially complied with the provisions of WCL § 137 by sending a copy of the consultant's report to the claimant, and that it was unaware that the claimant was represented. The carrier further argues that payments should be suspended based upon the consultant's finding of no further causally related disability.
In rebuttal, the claimant argues that her counsel's regular practice is to serve a copy of the Form OC-400 upon the carrier, "if known."
Upon review, the Full Board votes to adopt the following findings and conclusions.
The claimant, a case manager, suffered work related injuries to her back and shoulders on September 8, 2008. The carrier did not dispute the claim, and paid benefits to the claimant.
On August 26, 2009, the claimant's counsel, Grey & Grey, LLP, filed a Form OC-400 (Notice of Retainer and Appearance). The Form OC-400 used was the version of the form prescribed by the Board in April 2004, and, unlike more current versions, did not include a section certifying that a copy of the form was served upon the carrier.
On November 13, 2009, the carrier served the claimant with a Form IME-5 (Claimant's Notice of Independent Medical Examination), directing the claimant to appear for examination by Dr. Wert on December 2, 2009. Dr. Wert filed his report, which found that the claimant had no further disability, on December 11, 2009. The report was served upon the claimant, but was not served upon the claimant's counsel.
At a hearing on June 9, 2010, the claimant's counsel moved to preclude Dr. Wert's December 11, 2009, report pursuant to WCL § 137 for failure to serve a copy upon claimant's counsel. The carrier argued that it had substantially complied with WCL § 137 because claimant's counsel failed to serve a copy of the OC-400 upon the carrier, and therefore was not entitled to notice. The claimant's counsel advised the WCLJ that, while his office used an old version of Form OC-400, they customarily served a copy upon the carrier.
The WCLJ precluded the report of Dr. Wert. The WCLJ's findings were memorialized in an NOD filed June 14, 2010.
WCL § 137 and 12 NYCRR 300.2(d)(3) require that a copy of the independent medical examination report 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" (WCL § 137[a]). A report which does not "substantially comply" with the requirements of WCL § 137 is inadmissible (12 NYCRR 300.2[d]).
Pursuant to 12 NYCRR 300.17(a), "[a]n attorney or licensed representative…shall file a notice of retainer and appearance…on forms prescribed by the chair, immediately upon being retained [and shall] transmit a copy of such notice to the insurance carrier, self-insured or other representative of the employer at the time of filing." As of April 2008, the Form OC-400 prescribed by the Board required a "Certification of Transmittal of…Notice to Insurance Carrier/Self-Insured Employer," attesting to service of a copy of the Form OC-400 upon the carrier at the time of the filing with the Board.
In the recent case of Matter of Evergreen Commons (2011 NY Wrk Comp G0212727), the Board found that claimant's attorney's failure to provide the carrier with notice of representation excused the carrier's failure to serve a copy of the independent medical examination report upon the claimant's attorney. In Evergreen Commons, the claimant's attorney filed a Form OC-400 with the Board, but failed to complete Section F, which attests to service upon the carrier (Id). The Board Panel found that, even though the claimant's attorney had appeared at a hearing on behalf of the claimant before the independent medical examination was conducted, the independent medical examination report was not precluded for the carrier's failure to serve a copy upon claimant's counsel (Id). The Board Panel's holding in Evergreen Commons makes it clear that the requirement imposed by 12 NYCRR 300.17(a), that claimant's attorneys send a copy of their notice of retainer to the carrier is absolute, and will not be excused even though the circumstances suggest that the carrier had knowledge that claimant was represented.
In the present case, the claimant's attorney failed to give proper notice of representation to the carrier pursuant to 12 NYCRR 300.17. Contrary to the claimant's argument that the requirement that the claimant's attorney attest to service upon the carrier only went into effect as of September 2, 2009, the Form OC-400 prescribed by the Board as of August 28, 2009, required such attestation. The fact that the claimant's attorney chose to use an April 2004 version of Form OC-400 does not excuse the failure to provide the carrier with proper notice of representation or to attest to such service.
Accordingly, the carrier was not on proper notice of the claimant's representation and was not required to serve the claimant's counsel with a copy of the independent medical examination report. While the Form OC-400 was filed with the Board two months before the independent medical examination, no substantive events had occurred on the file which would otherwise place the carrier on notice of the claimant's representation. Thus, the carrier substantially complied with WCL § 137 by serving a copy of Dr. Wert's report upon the claimant, and the WCLJ erred in precluding the report.
Based on his December 2, 2009, examination, Dr. Wert found that the claimant suffered from no further disability. Therefore, awards from December 2, 2009, should be made tentative and the case restored to the trial calendar for a determination on the issue of claimant's degree of disability after that date, taking into consideration Dr. Wert's report.
ACCORDINGLY, the WCLJ decision filed on June 14, 2010, is modified to rescind the preclusion of Dr. Wert's report; to make awards after December 2, 2009, tentative; and to restore the case to the trial calendar for further evidence and determination of the issue of the claimant's degree of disability. The case is continued.