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Case # 00451162
Date of Accident: 11/09/2004
District Office: NYC
Employer: Jet Blue Airways Corporation
Carrier: Ins Co of State of Penn
Carrier ID No.: W117006
Carrier Case No.: 709-061879
Date of Filing of Decision: 06/28/2013
Claimant's Attorney: Rubin Abramson LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on August 2, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the claimant should be barred from receiving compensation benefits for failure to attend three scheduled independent medical examinations (IMEs).

The Workers' Compensation Law Judge (WCLJ) denied the carrier's request for suspension of payments to the claimant for failure to attend three scheduled IMEs, and directed that the claimant attend the next scheduled IME or payments to the claimant would be suspended.

The Board Panel majority disagreed with the WCLJ, finding that the claimant's failure to attend three scheduled IMEs warranted suspension of payments to the claimant for the period in which the IMEs were not attended.

The dissenting Board Panel member would affirm the WCLJ's decision that the claimant's benefits should not be barred pursuant to Workers' Compensation Law (WCL) § 13-a(4)(b) for failure to attend three schedule IMEs during the period from February 28, 2011, through May 23, 2011. The dissenting Board Panel member found that the claimant did not unreasonably refuse to submit to an IME, and that the claimant did attend an IME scheduled on May 23, 2011.

On September 4, 2012, the claimant filed an application for Mandatory Full Board Review, arguing that her benefits should not be barred pursuant to WCL § 13-a(4)(b) for failure to attend three scheduled IMEs.

The carrier did not file a rebuttal.

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

FACTS

In a decision filed on March 30, 2010, the WCLJ made awards for the period from November 25, 2009, to March 26, 2010, and continuing at a temporary partial disability rate of $223.02.

In an application for Board review, dated April 28, 2010, the carrier asserted that there is insufficient medical evidence in the Board file to support the awards, and that the claimant's awards should have been suspended because the claimant had failed to attend three scheduled IMEs. The IMEs were scheduled for December 23, 2009, January 14, 2010, and March 8, 2010.

By a decision filed on January 6, 2011, the Board Panel found that the record failed to show that the claimant refused to attend the scheduled IMEs. The Board Panel found that the record contained a valid reason for the claimant's failure to attend the IME scheduled on March 8, 2010, as she was confined to Montefiore Medical Center due to her causally related psychiatric condition. The Board Panel also found that there was sufficient medical evidence in the reports of Dr. Clarke, Dr. Silva, Dr. Miskin, and the letter from Montefiore Medical Center to support the awards.

At a hearing held on April 26, 2011, the carrier argued that awards should be suspended as the claimant had again failed to attend three IMEs scheduled for February 28, 2011, April 11, 2011, and April 25, 2011. The claimant then testified that she did not attend the IMEs as she was "depressed." Thereafter, the WCLJ granted the claimant "one more opportunity" and advised her that if she did not attend future IMEs, she ran the risk of having her benefits suspended. Awards were made from March 23, 2011, to April 27, 2011, and continuing at the rate of $223.02 per week based upon medical evidence provided by the claimant's physician, Dr. Clarke, that the claimant had a moderate-to-marked physical disability and an IME report by the carrier's Dr. Miskin, dated February 14, 2011, acknowledging a moderate partial temporary psychiatric disability. These findings were reflected in a decision filed on May 3, 2011.

The carrier filed an application for Board review arguing that all benefits to the claimant should have been suspended on the grounds that there is no up-to-date medical evidence, and further, that the WCLJ's decision awarding benefits must be rescinded and benefits to the claimant suspended pursuant to WCL § 13-a(4)(b) because claimant failed to attend multiple IMEs.

LEGAL ANALYSIS

A carrier, Special Fund, or self-insured employer is "entitled to have the claimant examined by a physician authorized by the chair…at a medical facility convenient to the claimant and in the presence of the claimant's physician, and refusal by the claimant to submit to such independent medical examination at such time or times as may reasonably be necessary in the opinion of the [Board, bars] the claimant from recovering compensation for any period during which he or she has refused to submit to such examination" (WCL § 13-a[4][b]; see also 12 NYCRR 300.2[d][8]).

Thus, when a claimant frustrates the employer's right to engage an independent medical consultant, a suspension of payments for the challenged injuries is warranted (see Matter of Jasmine v Rainbow Grill, 115 AD2d 862 [1985]). In contrast, there is no basis to bar payments where the claimant's failure to attend an IME is not due to a refusal to submit to such examination, or where the claimant's refusal is reasonable (see Matter of Ferguson v Fruehauf Corp., 156 AD2d 880 [1989]).

In the present case, the claimant had a statutory duty to attend an exam by the carrier's consultant. During the period from February 28, 2011, through May 23, 2011, claimant failed to attend a scheduled IME on February 28, 2011, April 11, 2011, and April 25, 2011. Claimant frustrated the carrier's right to engage an independent medical consultant by repeatedly missing scheduled IMEs. Claimant eventually attended an IME on May 23, 2011, but only after the WCLJ rendered a decision ordering claimant to attend the IME or have her payments suspended. Claimant's repeated failure to attend the scheduled IMEs without offering more than the excuse that she was "depressed," constituted an unreasonable refusal to attend such examinations.

However, while the claimant failed to fulfill her statutory obligation to attend three scheduled orthopedic IMEs, the claimant did attend a psychiatric IME on February 14, 2011, with Dr. Miskin, who found claimant to have a moderate partial temporary psychiatric disability. While the claimant is barred from receiving lost wage benefits based on her back and neck injuries during the period from February 28, 2011, through May 23, 2011, based on her failure to attend three orthopedic IMEs during that period, she is nonetheless entitled to receive benefits for her moderate partial psychiatric disability during that period (see Matter of Jasmine v Rainbow Grill, 115 AD2d 862 [1985]). In Matter of Jasmine, claimant sought benefits for a hand injury and a psychiatric condition which he alleged were work related. Claimant failed to attend a psychiatric IME scheduled by the carrier and the Board suspended all awards. The court modified the Board's decision, finding that "while the Board may properly have suspended payments for psychiatric treatments," based on claimant's failure to attend a psychiatric IME, that failure did not warrant "an across-the-board denial of benefits," and claimant was still entitled to benefits based on his disabling wrist injury (id.).

Therefore, the Full Board finds, based upon a preponderance of the evidence, that the claimant's benefits for her physical disability should have been barred pursuant to WCL § 13-a(4)(b) for the period from February 28, 2011, through May 23, 2011; however, the claimant's benefits for her psychiatric disability should not have been barred pursuant to WCL § 13-a(4)(b) for the period from February 28, 2011, through May 23, 2011. Therefore, the claimant's awards should be modified for the period from February 28, 2011, through May 23, 2011, to the moderate partial disability rate of $148.68.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on May 3, 2011, is MODIFIED to modify the claimant's awards for the period from February 28, 2011, through May 23, 2011, to the moderate partial disability rate of $148.68. No further action is planned by the Board at this time.