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 filed on April 13, 2011.
The issue presented for Mandatory Full Board Review is whether Dr. Nunez's November 30, 2009, IME-4 medical report, his addendum report, and his deposition testimony concerning those documents, should be precluded under Workers' Compensation Law (WCL) § 137.
In a decision filed on February 22, 2010, the Workers' Compensation Law Judge (WCLJ) awarded compensation, and continued the matter for the testimony of the medical witnesses, including Dr. Nunez.
In a Memorandum of Decision filed April 13, 2011, the Board Panel majority modified the WCLJ's decision to find that the November 30, 2009, IME-4 medical report of Dr. Nunez, his IME-3 addendum to this report, and his testimony concerning this IME and addendum are precluded.
The dissenting Board Panel member would have found that the November 30, 2009, IME-4 medical report of Dr. Nunez should not be precluded because there was substantial compliance with WCL § 137.
In its application for Mandatory Full Board Review filed on May 13, 2011, the carrier argues that the Board Panel majority's analysis of WCL § 137 is flawed and that the dissenting Board Panel member properly relied on the decisions in Matter of House Promotion DBA Metro Limo Service, 2011 NY Wrk Comp G0201427 and Matter of WalMart, 2007 NY Wrk Comp 70201170 to find that there was substantial compliance with WCL § 137.
In a rebuttal filed with the Board on June 13, 2011, the attorneys for the claimant argue that the Board Panel majority should be affirmed.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for a low back injury that resulted from an accident on March 4, 2008.
On October 23, 2009, the Board received an IME-5 form, to notify the claimant of an independent medical examination (IME) that had been scheduled with Dr. Nunez, the carrier's consulting orthopedic specialist (ECF Doc ID #158485799). The examination was scheduled to occur on November 30, 2009, for the purpose of evaluating the claimant's "current medical status."
Dr. Nunez submitted an IME-4 report of the examination on November 30, 2009, in which he stated that,
"[f]or the purpose of today's examination, I was asked to comment on the following: 'This claimant does not follow-through with any recommended treatments per the last IME's recommendation. He and his doctor continue to indicate that he is totally disabled from working.' I have been asked to comment on the claimant's degree of disability, work restrictions, capabilities, projected full duty return to work release date."
On December 14, 2009, the Board received an unsigned and undated IME-3 form to confirm a request for information from the carrier to Dr. Nunez in relation to the examination on November 30, 2009 (ECF Doc ID #160300667). Attached to the IME-3 form is a fax cover sheet dated December 10, 2009, addressed to Dr. Nunez, to request that he "please provide an addendum commenting on the following: The claimant recently went to work … and had to stop after 5 [hours] when he aggravated his back. What were his job duties at the [new employer] and how did he injure his back there? Did he have a new accident that injured his back? If so, what portion of his current need for treatment and disability is related to the injury at the [new employer]?"
On December 28, 2009, the Board received a copy of the undated IME-3 form that was now signed by Dr. Nunez, with an attached addendum report dated December 21, 2009 (ECF Doc ID #160745255), in which Dr. Nunez quoted the carrier's request for comment that was provided with the IME-3 form. Dr. Nunez stated that he was unaware that the claimant had returned to work and therefore, he was unable to state whether there was a new work injury, or whether any portion of the claimant's current disability is related to his work with the new employer. Dr. Nunez opined that the claimant's disability is related to the original accident but explained that if provided with additional information about the claimant's work with the new employer, he would provide an opinion related to that work.
The record contains no IME-3 form or other documentation related to the November 30, 2009, examination that contains a request for information from the carrier that is consistent with that quoted by Dr. Nunez in his IME-4 report of the examination on November 30, 2009.
On January 14, 2010, the carrier filed a request for further action to consider whether awards should be suspended or reduced. The carrier noted that there is no current medical evidence from a treating physician, and also relied on Dr. Nunez's IME report.
At the hearing held on February 17, 2010, the WCLJ indicated that depositions needed to be scheduled for testimony on the issues of permanency and degree of disability. However, the claimant's attorney noted that Dr. Nunez's report of the November 30, 2009, examination did not contain an IME-3. The carrier's attorney argued that the IME-4 report that was received on December 11, 2009, provided the necessary request for information. The WCLJ agreed and found substantial compliance with WCL § 13-a.
In the decision filed on February 22, 2010, the WCLJ made awards for the period from September 22, 2009, to February 18, 2010, and continuing at the tentative rate of $218.79 per week, and continued the matter for the testimony of the medical witnesses.
WCL § 137(1)(b) states that,
"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. Nothing in this subdivision shall be construed to abrogate the attorney-client privilege [emphasis added]."
Here, the IME-4 report of Dr. Nunez's examination was clearly based on a request for information from the carrier since Dr. Nunez referred to that request in the report. There is an IME-3 form in the file to document the carrier's request for an examination for the purpose of evaluating the claimant's "current medical status." However, the record does not contain a "copy of the request for information" that correlates to what is noted by Dr. Nunez in his report. Therefore, it would appear that not all of the correspondence between the carrier and the doctor has been submitted.
12 NYCRR 300.2(d) states that, "[a] report of an examination that does not substantially comply with the requirements of [WCL § 137] and this Part, shall not be admissible as evidence for any of the purposes described in paragraph (b)(4) of this section in a workers' compensation proceeding [emphasis added]."
The Board Panel decisions relied on by the carrier are not applicable to the facts presented in this case. Specifically, in Matter of House Promotion DBA Metro Limo Service, 2011 NY Wrk Comp G0201427 and Matter of WalMart, 2007 NY Wrk Comp 70201170, the Board Panel found that although the carrier had sent its request for information on the wrong form (IME-5), there was substantial compliance with WCL § 137 because a copy of the request for information was in the Board records. Here, in contrast, the original request for information cited by Dr. Nunez in his IME-4 medical report was not filed with the Board as required by WCL § 137.
Therefore, the Full Board finds that Dr. Nunez's November 30, 2009, IME-4 medical report, his addendum report, and his deposition testimony concerning those documents, should be precluded under WCL § 137.
ACCORDINGLY, the WCLJ decision filed February 22, 2010, is MODIFIED to reflect that the November 30, 2009, IME-4 medical report of Dr. Nunez, his IME-3 addendum to this report, and his testimony concerning this IME and addendum are precluded. The rest of the WCLJ's decision remains in effect. Pursuant to a decision subsequently filed on March 18, 2013, no further action is planned by the Board at this time.