The Full Board, at its meeting held on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision (MOD) filed August 8, 2012.
The issue presented for Mandatory Full Board Review is whether evidence of a telephone conversation between the claimant and State Insurance Fund's (SIF's) vocational rehabilitation counselor should be precluded.
The Workers' Compensation Law Judge (WCLJ) referred the case to the Administrative Review Division to determine whether SIF had submitted evidence sufficient to reopen the case on the issue of attachment to the labor market.
The Board Panel majority precluded the contents of a telephone conversation between the claimant and SIF's vocational rehabilitation counselor, concluded that SIF had submitted insufficient evidence to warrant a reopening the case, and denied the request, without prejudice.
The dissenting Board Panel member determined that the claimant had voluntarily initiated the telephone call to SIF "only after [SIF] had simultaneously sent correspondence to the claimant's attorney in accordance with the appropriate legal protocol," such that the conversation was akin to a claimant's response to a work search questionnaire. The dissenting member concluded that the contents of the conversation should be admitted and the case reopened on the issue of attachment to the labor market.
In its application for Mandatory Full Board Review, SIF asserts that the telephone conversation was analogous "to a claimant answering a work search questionnaire after it was sent to a claimant and copied to the claimant's attorney" and that its request to reopen the claim should be granted.
In her rebuttal the claimant argues that SIF wrongly contacted the claimant and provided her with "legal advice" that she had a duty to remain attached to the labor market. The claimant also asserts that a written questionnaire, which seeks only factual information, is not akin to a telephone conversation, during which the vocational rehabilitation counselor "solicited unfavorable admissions" from the claimant.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for a work-related injury to the claimant's back that occurred on September 12, 1993. The claimant was classified as permanently partially disabled in 1998.
The claimant is represented by Kevin J. McDonald, Esq. of Bond, McDonald and Lehman, P.C. with respect to this matter, as made evident by the OC-400 (Notice of Retainer and Appearance) form filed on September 29, 1997.
In a March 15, 2012, letter to the claimant's attorney, CBI Employment indicated that the claimant had been referred by SIF to a career development facilitator "to assist her back into the active work force within her physical and vocational capabilities." The letter states: "In order to maximize these opportunities for [the claimant], please provide us with permission to speak to her directly… I look forward to your written response to my request to work directly with your client." The letter indicates that the claimant was forwarded a copy of the correspondence.
There is no indication in the case file that the claimant's attorney subsequently provided written or verbal permission to CBI Employment to speak with the claimant.
In an April 2, 2012, letter to the claimant, SIF's vocational rehabilitation counselor stated, in relevant part:
On 3/26/12 I responded to the voice mail message you left for me about a letter sent to you by CBI Employment offering you vocational assistance.
I explained that because you have a partial disability you should be attached to the labor market through job search or retraining. I informed you that without legitimate evidence of attachment to the labor market your benefits could be affected. I offered to assist you with job search or retraining. You responded "I'm not going back to work, I receive SSI. I don't care about the $67.00."
I then asked you if you were willing to surrender your Workers Compensation benefits if you are required to seek employment and you stated "Yes." I then referred you to your attorney. I have not heard from you since 3/26/12 even though I have phoned you and left three messages to return my calls.
SIF filed an RFA-2 (Request for Further Action by Carrier/Employer) on April 5, 2012, in which it asserted that payments should be suspended as of March 26, 2012, as it had new documentation regarding the claimant's "voluntary removal from the labor market." In support, SIF attached its April 2, 2012, letter to the claimant.
In a decision filed on May 7, 2012, the WCLJ referred the case to the Administrative Review Division to address SIF's application to reopen the case on the issue of attachment to the labor market.
Board Rule 300.23(c)(1) specifically pertains to cases, like the instant one, which have been closed upon a finding of a permanent partial disability and the carrier is seeking a suspension of benefits. As to such post-classification reopening, the regulation provides that "payments shall not be suspended or modified until an application on a prescribed form accompanied by supporting evidence, is made to reconsider the degree of impairment or wage-earning capacity together with proof of mailing of copies thereof upon the claimant, his/her doctor and his/her representative and the board has made a final determination of such application, finding that such suspension or modification is justified."
In Matter of Rochester Business Alliance, 2011 NY Wrk Comp 70511177, the Board held that written correspondence by a carrier to a represented claimant must be simultaneously copied to the claimant's representative. This rule applies to applications or requests to reopen by carriers pursuant to Board Rules 300.23(c)(1) and 300.14 (id.). If an application or request to reopen does not include evidence that any written correspondence directed to the claimant was simultaneously copied to claimant's representative, such written correspondence, and any response thereto, shall be deemed inadmissible and not considered in determining whether the carrier has submitted sufficient supporting evidence to warrant a reopening of the case.
The Board in Matter of Rochester Business Alliance additionally held that "if the carrier or its attorney or agent is actually meeting with or speaking to the claimant in person relative to his/her workers' compensation case, the claimant's representative must be advised prior to the meeting or conversation so that he/she has sufficient time either to participate or advise the claimant accordingly" (id.).
"The Board, in adopting its code of conduct for licensed representatives and its policy statement on ex parte communications with claimants represented by attorneys, clearly announced that such communication be accomplished only through the attorney or representative. The Board finds that such a rule embodies principles of fairness, prevents an unsophisticated claimant from being taken advantage of, and preserves the attorney/client relationship announced in the Notice of Retainer and served upon the parties. To eviscerate this rule … is neither logical nor rational in the adversarial forum of workers' compensation since all communications deal with the compensation case and ultimately the claimant's entitlement to benefits" (id.).
The Full Board finds, upon review of the evidence of record, that the evidence of the contents of the March 26, 2012, telephone conversation between the represented claimant and SIF's agent are precluded. The September 29, 1997 filing of an OC-400 form placed SIF on notice that the claimant was represented by counsel with respect to this claim. CBI Employment, acting as SIF's agent, acknowledged this attorney-client relationship by sending a March 15, 2012, letter to the claimant's attorney (and carbon copied the claimant), in which it explicitly requested written permission to speak directly with the claimant in order to provide job search assistance. Based upon SIF's April 2, 2012, letter, it appears that the claimant responded to the March 15, 2012, letter by calling SIF directly sometime prior to March 26, 2012, and SIF's vocational rehabilitation counselor returned the claimant's call on March 26, 2012.
The March 15, 2012, letter from SIF's agent specifically requested the claimant's attorney's written permission to contact the claimant directly. SIF has not asserted that such permission was ever received, and a review of the case file does not disclose the existence of a letter in which the claimant's attorney provided permission to CBI Employment to speak to the claimant. SIF returned a call to the claimant on March 26, 2012, without permission of the claimant's attorney. SIF was not granted the claimant's attorney's permission to initiate this contact, such that the contents of the conversation must be precluded.
While SIF correctly contends that the return of completed written questionnaire forms initially sent to the claimant and her attorney satisfy the requirements of Matter of Rochester Business Alliance, the instant case is distinguishable. Here, based upon the contents of the March 15, 2012, letter from CBI Employment, it was reasonable for the claimant's attorney to rely on the belief that no contact with the claimant would ensue without the attorney's written permission. As such, SIF's March 26, 2012, telephone call to the represented claimant was improper.
Based on the foregoing, the Full Board finds that the evidence of the contents of the March 26, 2012, telephone conversation between the represented claimant and SIF's agent is precluded. Therefore, SIF has failed to provide any evidence in support of its contention that the claimant has not responded to the offer of job search assistance. As such, its request to reopen the case on the issue of labor market attachment is denied.
ACCORDINGLY, SIF's application to reopen the case is denied. No further action is planned by the Board at this time.