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Case # G0320820
Date of Accident: 08/13/2010
District Office: NYC
Employer: Island Transportation Corp
Carrier: Liberty Mutual Insurance Co
Carrier ID No.: W124002
Carrier Case No.: WC823-428996
Date of Filing of Decision: 07/12/2013
Claimant's Attorney: Cohen & Siegel, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on May 21, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 15, 2012.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier's independent medical examination report should be precluded pursuant to Workers' Compensation Law (WCL) § 137 and 12 NYCRR 300.2.

The Workers' Compensation Law Judge (WCLJ) precluded the carrier's independent medical examination report.

The Board Panel majority affirmed the WCLJ's decision, finding that the carrier was on notice that the claimant had retained new counsel, but did not serve a copy of the independent medical examination report on the claimant's new counsel.

The dissenting Board Panel member found that sufficient evidence supported excusing the carrier's failure to serve a copy of the independent medical examination report upon claimant's new counsel.

In its application for Mandatory Full Board Review, the carrier argues that it substantially complied with WCL § 137 by serving a copy of the independent medical examination report on the claimant's original attorney.

In rebuttal, the claimant argues that a review of the Board's electronic case folder would have informed the carrier to the fact that he had retained new counsel, and that the carrier's failure to copy of the independent medical examination report on the claimant's new counsel constituted a violation of WCL § 137.

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

FACTS

The claimant, a truck driver, filed a C-3 (Employee Claim) on August 20, 2010, alleging that he suffered a back injury while working on August 13, 2010. Jonathan H. Poznansky, Esq. filed a Form OC-400 (Notice of Retainer and Appearance) on August 20, 2010, stating that he was representing the claimant before the Board.

On October 8, 2010, the carrier filed a Form C-669 (Notice to Chair on Carrier's Claim for Benefits) indicating that it was not controverting the claim for a back injury, and that the claimant had less than seven days of lost time as a result of his injury.

On November 28, 2010, Mr. Poznansky filed a Form RFA-1 (Claimant's Request for Further Action) requesting a hearing on the issue of whether the carrier properly denied the claimant's physician's request for an MRI of the right shoulder.

The law firm of Cohen & Siegel, LLP filed a Form OC-400 on December 17, 2010. The Form OC-400 indicated that it was a Notice of Retainer and Appearance, but did not indicate that Cohen & Siegel, LLP was being substituted for Mr. Poznansky. Cohen & Siegel, LLP did not complete the sections of the form indicating that the form was served upon Mr. Poznansky or the carrier.

On December 24, 2010, the Board issued an administrative decision which became final on January 24, 2011, establishing the claim for a back injury. The administrative decision was served upon Mr. Poznansky, but was not served upon Cohen & Siegel, LLC.

Mr. Poznansky filed a Form RFA-1LC (Request for Further Action by Legal Counsel) on January 11, 2011, indicating that the claimant had medical evidence supporting amendment of the claim to include a bilateral shoulder injury. The Board responded to Mr. Poznansky via a Form EFRA-1.1 sent on January 26, 2011, and indicated that the matter would be referred for an administrative decision.

On April 7, 2011, the carrier issued a Form IME-5 (Claimant's Notice of Independent Medical Examination) advising the claimant that an appointment was scheduled for Dr. Wilson to examine him on May 9, 2011. The Form IME-5 was served upon Mr. Poznansky, but was not served upon Cohen & Siegel, LLC. Dr. Wilson's examination took place as scheduled and his report was filed on May 17, 2011. The report was served upon Mr. Poznansky, but was not served upon Cohen & Sigel, LLC.

In his May 9, 2011, report, Dr. Wilson found that claimant's back injury had resolved, that claimant had "[n]o cervical injury," and that claimant had "[r]ight shoulder rotator cuff disease unrelated to the injury of August 13, 2010."

Cohen & Siegel, LLP filed a second Form OC-400 on May 20, 2011. Again, the form did not indicate that Cohen & Sigel was being substituted as counsel for the claimant. However, the form did indicate that it was served upon the carrier.

The Board issued a Notice of Hearing on May 3, 2011, advising the parties that a hearing was scheduled to take place on May 26, 2011. The Notice of Hearing was served on both Mr. Poznansky and Cohen & Siegel, LLC.

At the hearing, Cohen & Sigel, LLC appeared on behalf of the claimant and argued that Dr. Wilson's report should be precluded for failure to serve a copy of it upon Cohen & Siegel as counsel for the claimant. The WCLJ precluded the report, noting that the Notice of Retainer was included in the Board's electronic case folder. The WCLJ also amended the claim to include a neck and right shoulder injury, set the claimant's average weekly wage at $1,361.12, and marked the case for no further action. The WCLJ's findings were memorialized in a Notice of Decision filed on June 1, 2011.

The carrier sought administrative review of the June 1, 2011, Notice of Decision, arguing that Dr. Wilson's report should not have been precluded, that the establishment of the case for the neck and right shoulder should be rescinded and the matter returned to the trial calendar for medical testimony on the issue of whether claimant sustained causally related neck and right shoulder injuries.

The carrier subsequently had claimant reexamined by Dr. Wilson on November 5, 2012. In his resulting report, Dr. Wilson found that claimant's back injury had resolved and that claimant had cervical osteoarthritis which was not causally related. However, while in his earlier report Dr. Wilson found claimant's shoulder injury was not causally related, he now concluded that claimant had a "[r]ight shoulder labral tear causally related to [the] injury [of] August 13, 2010."

Thereafter, pursuant to a stipulation by the parties, claimant was awarded a 30% schedule loss of use of right arm based on his shoulder injury, which was paid by the carrier (see Notice of Decision filed March 4, 2013).

LEGAL ANALYSIS

Pursuant to WCL § 137(1)(a), "[a] copy of each report of independent medical examination shall be submitted by the practitioner … to the board, the insurance carrier, the claimant's attending physician or other attending practitioner, the claimant's representative and the claimant." "The failure to so file and serve the IME Report … shall be a waiver of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME Report on the threshold issue of causal relationship, unless the insurance carrier makes a showing of good cause for such failure, and that it acted in good faith and with due diligence." (12 NYCRR 300.38[g][8]; see also [b][3]).

12 NYCRR 300.17(a) requires that "[a]n attorney or licensed representative shall file a notice of retainer and appearance, and, when appropriate, a notice of substitution, on forms prescribed by the chair, immediately upon being retained. The attorney or licensed representative shall also transmit a copy of such notice to the insurance carrier, self-insured or other representative of the employer at the time of filing." 12 NYCRR 300.17(b) further provides that "[a]n attorney or licensed representative, substituted for a former attorney or licensed representative, shall immediately upon being retained serve the former attorney or licensed representative with a copy of the notice of substitution."

In the present case, no party disputes that Dr. Wilson's independent medical examination report was not served upon Cohen & Siegel, LLP; nor does any party dispute that Cohen & Siegel, LLP failed to properly complete the Form OC-400 and failed to serve a copy of the form on the carrier and the claimant's original attorney. As a result of Cohen & Siegel, LLP's failure to file a proper Notice of Substitution and its failure to serve a copy of the OC-400 upon Mr. Poznansky, Mr. Poznansky continued to act under the reasonable belief that he was representing the claimant in the present action. He accordingly filed a request for further action in January 2011. Likewise, the carrier, having not been served with a copy of the OC-400, and being served with a copy of the Request for Further Action by Legal Counsel filed by Mr. Poznansky, was under the reasonable belief that Mr. Poznansky was the sole representative of the claimant. While the Board's electronic case folder did include information identifying Cohen & Siegel, LLP as a representative of the claimant, the carrier had no reason to believe that the claimant had retained additional counsel.

Furthermore, since Cohen & Siegel, LLP did not file a Notice of Substitution and did not serve a copy of the Notice of Retainer on Mr. Poznansky, Mr. Poznansky continued as counsel of record for the claimant at least through the May 3, 2011, hearing. Thus, while the carrier did not serve a copy of the independent medical report upon Cohen & Siegel, LLP, it did serve a copy upon the claimant's duly retained attorney, Mr. Poznansky.

Therefore, the carrier's failure to serve a copy of the independent medical examination report on Cohen & Siegel, LLP is excused and the report admitted into evidence. In addition, the establishment of the claim for the neck is hereby rescinded, without prejudice, and the matter remitted to the trial calendar for further development of the record on the issue of whether that condition is causally related, taking into consideration Dr. Wilson's May 9, 2011, report.

However, insofar as Dr. Wilson, in his subsequent report filed November 5, 2012, found that claimant's right shoulder injury was causally related, and the carrier stipulated to and paid a schedule loss of use award based on claimant's right shoulder injury, the establishment of the claim for the right shoulder is affirmed.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 1, 2011, is MODIFIED to find that the Dr. Wilson's report is not precluded, and to rescind, without prejudice, the amendment of the claim to include the neck. The decision is otherwise affirmed. The case is continued.