Case # 30608816
Date of Accident: 02/08/2006
District Office: Peekskill
Employer: St Josephs Hospital
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 61784955-164
Date of Filing of Decision: 01/10/2013
Claimant's Attorney: Sher, Herman & Bellone, P.C.
Panel: Robert E. Beloten

The Full Board, at its meeting held on November 14, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed on January 23, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether awards were properly made for the periods from June 7, 2009, through November 19, 2010, and January 4, 2011, through May 23, 2011.

By a decision filed on November 26, 2010, the Workers' Compensation Law Judge (WCLJ) directed awards from August 8, 2008, through November 23, 2010, and continuing, at a $250.00 tentative rate. In a decision filed June 6, 2011, the WCLJ directed awards from November 23, 2010, through May 27, 2011, and continuing, at a $250.00 tentative rate.

The Board Panel majority affirmed the awards.

The dissenting Board Panel member found that as there was no evidence of disability for the period June 7, 2009, through November 19, 2010, the awards for that period should be rescinded and held-in-abeyance pending production of medical evidence of disability. It does not appear the dissenting Board Panel Member objected to the affirmation of awards for the period January 4, 2011, through May 23, 2011, awarded in the decision filed June 1, 2011.

In an application for Mandatory Full Board Review filed on February 16, 2012, the carrier asserts that that the claimant produced only one report during the period between his reports of April 23, 2009, and May 23, 2011, and that the Board Panel has not followed its own precedent in sustaining awards for the periods at issue. No rebuttal was filed.

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

FACTS

The claimant, a cook supervisor, was injured on February 8, 2006, when she slipped on a wet floor. This claim was controverted by the carrier, but was ultimately established for injuries to the claimant's neck and right shoulder by the WCLJ's decision filed January 8, 2007. The carrier had the claimant examined by Dr. Palmer, an orthopedist, who in a report dated August 28, 2008, found that claimant had reached maximum medical improvement, that claimant's neck injury had resolved, and that claimant's shoulder condition was equal to a 25% schedule loss of use (SLU) of the claimant's right arm.

The claimant maintained that she should be classified permanently partially disabled pursuant to the reports of treating chiropractor, Dr. Harvey. By a decision filed January 26, 2009, the WCLJ directed the depositions of Dr. Harvey and Dr. Palmer.

Dr. Harvey was deposed on February 9, 2009, and testified that claimant had a moderate to marked permanent partial disability. However, Dr. Harvey further testified that claimant had not reached maximum medical improvement, that she would respond to a more active course of treatment, and would benefit from a surgical decompression of her surgical spine.

Dr. Palmer was deposed on March 12, 2009, and testified in accordance with his report.

In a decision filed April 29, 2009, the WCLJ indicated that "[n]o further action is planned by the Board at this time as the parties are discussing a settlement." At that time, there was a direction in place that carrier was to continue payments at the tentative rate of $250.00 (see WCLJ's decision filed August 6, 2008).

Over a year later, on November 1, 2010, the carrier filed a RFA-2 (Carrier's/Employer's Request for Further Action) requesting that it be allowed to suspend benefits based upon the lack of up-to-date medical evidence.

At a hearing held November 22, 2010, the carrier requested that it be allowed to suspend benefits as the claimant had not produced any medical evidence of disability for the period May 23, 2009, through November 20, 2010, and argued that no benefits should be due the claimant for the period June 7, 2009, through November 19, 2010 (an up-to-date report for treatment with Dr. Harvey on November 19, 2010, in which the doctor assesses a total disability, was produced at the hearing). Claimant's counsel argued that the reason there was no medical evidence for the period in question was because the parties were attempting to resolve the case, in good faith, via a Workers' Compensation Law (WCL) § 32 agreement, and contended that "[w]e believe we still have an agreement with the State Insurance" (Transcript, 11/22/10 Hearing, p. 3). The carrier's representative did not dispute that statement. After hearing the parties' arguments, the WCLJ brought awards up-to-date at the tentative rate of $250.00, and directed the carrier to continue payments at the same rate. The resulting decision, filed November 26, 2010, indicated that "[n]o further action is planned by the Board at this time as the parties are discussing a settlement."

The carrier filed another RFA-2 on March 18, 2011, again petitioning for a suspension of benefits based upon a lack of up-to-date medical evidence. At a hearing on May 26, 2011, the carrier argued that awards should be suspended because no medical evidence had been produced since the November 19, 2010, report of Dr. Harvey. Claimant's attorney submitted into evidence a report by Dr. Harvey, based on a May 23, 2011, examination, which found that claimant was totally disabled. Claimant's attorney stated that claimant "was advised to bring the treatment to a close because the Section 32 papers were signed already, and [Medicare] approval is what has been delaying it" (Transcript, 5/26/11 Hearing, p. 3). The carrier's representative did deny that the parties had reached an agreement settling this matter. The WCLJ brought awards up-to-date at the tentative rate of $250.00, and directed the carrier to continue payments at the same rate. The resulting decision, filed June 1, 2011, again noted that "[n]o further action is planned by the Board at this time as the parties are discussing a settlement."

The carrier sought administrative review of the WCLJ's decisions filed November 26, 2010, and June 1, 2011.

LEGAL ANALYSIS

In its application for Mandatory Full Board Review, the carrier contends that the claimant produced only one report during the period between his reports of April 23, 2009, and May 23, 2011, and that the Board Panel has not followed its own precedent in sustaining awards for the periods at issue. The claimant has not filed a rebuttal.

When a claimant's disability has not been classified as permanent, there is no presumption or inference of a continuing disability, and the claimant's attending physicians have the burden of submitting up-to-date medical evidence that the disability is continuing (see 12 NYCRR 325-1.3[b][3]; Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141 [2009]). However, the Board may excuse gaps in the medical record that are explained by exigencies of the case and, in particular, the medical record (see Matter of Kamrowski v Vestal Nursing Ctr., 24 AD3d 1014 [2005]).

In the present matter, the claimant has not yet been classified. The only medical evidence of a causally related disability during the period from April 23, 2009, to May 23, 2011, is a single report by Dr. Harvey, based on a November 19, 2010, examination. However, the parties clearly had the intention of settling the case when the WCLJ, in a decision filed April 29, 2009, indicated that "[n]o further action is planned by the Board at this time as the parties are discussing a settlement." The carrier does not deny that the parties still intended to resolve the matter via a WCL § 32 agreement at the time of the subsequent hearing on November 22, 2010, and May 26, 2011. Furthermore, as found by the Board Panel majority, it would be fundamentally unfair to rescind awards for the period from June 7, 2009, to November 19, 2010, on the basis of a lack of medical evidence, particularly where the carrier was contending that the claimant had reached maximum medical improvement and that her condition was amenable to a schedule loss of use.

In addition, the medical evidence submitted by the claimant's physician, Dr. Harvey, finds a total disability for the dates of treatment of November 19, 2010, and May 23, 2011. Based upon the particular facts and circumstances presented herein, the Board Panel declines to rescind awards for the period from January 4, 2011, to May 23, 2011 (see Matter of Kamrowski v Vestal Nursing Ctr., 24 AD3d 1014 [2005]).

Accordingly, the Full Board finds that the gaps in medical evidence should be excused and that the record supports awards from June 7, 2009, through November 19, 2010, and January 4, 2011, through May 23, 2011.

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed on November 26, 2010, and June 1, 2011, are AFFIRMED. No further action is planned by the Board at this time.