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 October 26, 2010.
The issues presented for Mandatory Full Board Review are:
The Workers' Compensation Law Judge (WCLJ) admitted the consultant's report into the record and directed awards at a tentative marked rate of disability pending medical testimony.
Following applications for administrative review by both parties, the Board Panel majority modified to preclude the consultant's report and direct awards at a marked partial disability rate.
The dissenting Board Panel member would have declined to consider the claimant's application for review of the WCLJ's December 22, 2009, amended decision.
The carrier filed an application for Mandatory Full Board Review on November 19, 2010.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established to the back with the average weekly wage fixed at $530.00. Awards were directed for various periods of time; however, at a hearing held on March 4, 2009, the WCLJ suspended payments pending claimant's submission of medical evidence.
Claimant's treating physician, Dr. Scheinfeld, subsequently filed reports indicating that claimant had a marked partial disability beginning on May 7, 2009.
The record contains an IME-5 (Claimant's Notice of Independent Medical Examination) advising claimant that he was scheduled to be examined the by the carrier's consultant, Dr. Tucker, on November 11, 2009. The IME-5 indicates that the purpose of the examination was to determine "Degree of Disability," "Necessity of Treatment," "Work Restrictions," and "Claimant Working."
In the resulting IME-4 report (Practitioner's Report of Independent Medical Examination) filed with the Board on November 30, 2009, Dr. Tucker stated that his "report and its conclusions will be based on review of information provided by the insurance carrier and/or the employer as of the date of the examination along with the objective findings and the history obtained from the examinee." Dr. Tucker concluded that claimant had a moderate disability. On November 30, 2009, the Board also received an IME-3 (Practitioner's Report of Request for Information/Response to Request Regarding Independent Medical Examination) signed by Dr. Tucker, indicating that he received a request for information concerning claimant's examination on November 11, 2009, sent a response to the request for information on November 23, 2009, and that he had attached copies of the request for information and his response. However, no documents were attached to the IME-3, other than the IME-4 report.
At a hearing on December 8, 2009, the claimant's attorney moved to preclude the consultant's report. The WCLJ denied this request and directed awards from May 7, 2009, and continuing at a marked tentative rate of $265.00 per week and continued the claim for medical testimony on the issue of degree of disability (see December 11, 2009, decision and December 22, 2009, amended decision).
At a hearing on January 5, 2010, the claimant's treating physician, Dr. Scheinfeld, testified. At the conclusion of his testimony, the WCLJ continued awards at the marked tentative rate, directed the parties to take Dr. Tucker's deposition testimony, and reserved decision on the issue of degree of disability (see decision filed January 8, 2010).
On January 11, 2010, the claimant's attorney filed an application for review of the WCLJ's December 22, 2009, amended decision, arguing that Dr. Tucker's report should be precluded. In applications filed on January 11, 2010, and February 8, 2010, the carrier sought review of the WCLJ's December 11, 2009, decision, December 22, 2009, amended decision, and January 8, 2010, decision, requesting that awards be reduced to a tentative moderate rate.
In its application for Mandatory Full Board Review, the carrier argues that claimant waived the right to appeal the WCLJ's decision not to preclude Dr. Tucker's report, and that Dr. Tucker complied with all the requirement of WCL § 137. The carrier contends that the only substantive communication with Dr. Tucker was the IME-5, which is in the Board file. The carrier further argues that all the medical records reviewed by Dr. Tucker are identified in the IME-4 and were already in the Board's file at the time of the examination, so that Dr. Tucker was not required to file those reports with the Board pursuant to Matter of Orchard Earth and Pipe Corp., (2006 NY Wrk Comp 90404451), where the Board held that:
…if an IME practitioner files an IME-4 report, that clearly identifies the materials and records he or she reviewed in making a medical determination and these records are part of the Board file, they need not be re-supplied to the Board. Conversely, when an IME practitioner reviews medical reports or any other information supplied in connection with his or her medical evaluation of the claimant, that is not contained within the Board case file, the IME practitioner is required by WCL 137(1)(b) and 12 NYCRR 300.2 to supply that information to the Board within ten days of receipt.
Preclusion of Tucker's Report
WCL § 137(b) provides:
If a practitioner who has performed or will be performing an independent medical examination of a claimant receives a request for information regarding the claimant, including faxed or electronically transmitted requests, the practitioner shall submit a copy of the request for information to the board within ten days of receipt of the request.
12 NYCRR 300.2(b)(11) provides:
Request for information, for purposes of section 137 (B)(1) of the Workers' Compensation Law, except as limited under section 4503 of the Civil Practice Law and Rules, means any substantive communication with an independent medical examiner, or his or her office, regarding the claimant from any person, including a claimant, that takes place or is initiated outside of the independent medical examination, including a request or referral for examination and any communication related thereto, questions or inquiries related to the claimant or the examination, and the provision of information to the examiner for review in connection with a request for the examiner's professional opinion with regard to the claimant or the examination.
On November 30, 2009, the Board received an IME-3 signed by Dr. Tucker, indicating that he received a request for information concerning claimant on November 11, 2009, the date of the examination. Clearly, Dr. Tucker believed he had received a substantive communication which constituted a request for information for purposes of WCL § 137. Pursuant to WCL § 137(b), and as directed by the IME-3 form, Dr. Tucker was obligated to forward a copy of the request for information to the Board within ten days of its receipt. However, the IME-3 submitted by Dr. Tucker was filed with the Board more than ten days after November 11, 2009, the date upon which Dr. Tucker indicated he received the request for information, and failed to attach a copy of the request.
The Full Board finds that Dr. Tucker received a request for information concerning claimant on November 11, 2009, but failed to file a copy of the request with the Board within ten days of its receipt pursuant to WCL § 137(b). Therefore, his report is precluded.
Degree of Disability
The Full Board finds that after Dr. Tucker's report is precluded, the only medical evidence in the record relevant to the period in question indicates that claimant has a marked partial disability.
ACCORDINGLY, the WCLJ decision filed on December 11, 2009, amended decision filed December 22, 2009, and decision filed January 8, 2010, are MODIFIED to preclude the report of Dr. Tucker and to make all awards permanent, rather than tentative, at the marked partial disability rate. Otherwise, the decisions remain in effect. The case is continued.