The Full Board, at its meeting held on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on February 22, 2013.
The issue presented for Mandatory Full Board Review is whether the carrier should be liable for payment of the claimant's schedule loss of use award, notwithstanding liability having transferred to the Special Funds Conservation Committee (Special Funds) pursuant to Workers' Compensation Law (WCL) § 25-a.
The Workers' Compensation Law Judge (WCLJ) awarded the claimant a 15% schedule loss of use of the left hand, discharged the carrier, and transferred liability of the claim to the Special Funds pursuant to WCL § 25-a, effective August 10, 2011.
The Board Panel majority found that since the carrier failed to properly manage and maintain the claim up until the date liability shifted to the Special Funds (by failing to obtain an IME on permanency), the carrier remained liable for the schedule loss of use award.
The dissenting Board Panel member would have found that Special Funds is responsible to pay the claimant's schedule loss of use award.
In its application for Mandatory Full Board Review filed with the Board on March 22, 2013, the carrier contends that WCL § 25-a applies to this case effective August 10, 2011, and therefore the Special Funds should be responsible for the payment of the claimant's schedule loss of use award. The carrier further contends that it acted in complete due diligence and properly handled the file by making a conscious decision to accept the schedule loss of use opinion of the claimant's consultant and not obtain an independent medical exam (IME). The carrier further contends that it objected to the proposed decision making the 15% schedule loss of use award solely because the award was not made without prejudice to WCL § 25-a.
In its rebuttal filed with the Board on April 19, 2013, the Special Funds contends that the carrier's failure to obtain an IME with regard to the claimant's schedule loss of use and then failing to pay the schedule loss of use award immediately (rather than objecting to the proposed schedule award on the ground that WCL § 25-a applied), prejudiced both the claimant and the Special Funds, and was a dereliction of the carrier's duty to properly maintain its file. Therefore, the Special Funds contends that the majority properly determined that the carrier should remain responsible for the payment of the schedule loss of use.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On August 10, 2004, the claimant, a certified nursing assistant, was injured while assisting a resident. By administrative decision filed on November 17, 2004, which became final on December 17, 2004, the case was established for work-related injuries to the claimant's left shoulder and left wrist and her average weekly wage was set as $380.35. By administrative decision filed on February 17, 2005, and finalized on March 21, 2005, compensation was awarded for the period from August 11, 2004, to September 6, 2004, and the case was closed.
On February 28, 2005, the carrier submitted a form C-8/8.6 (Notice that Payment of Compensation Has Been Stopped or Modified) indicating that benefits had been paid to the claimant in accordance with the awards, and the most recent payment was mailed to the claimant on September 9, 2004.
In a letter dated December 9, 2011, the claimant's attorney requested that Dr. Saunders provide an opinion as to whether the claimant has a permanent disability with respect to her left shoulder and left wrist; if yes, whether the claimant's disability was amenable to a schedule loss of use; and if so, what was the percentage schedule loss of use of the claimant's left shoulder and left wrist causally related to the August 10, 2004, work accident.
Dr. Saunders examined the claimant on December 20, 2011, and issued a corresponding report opining the claimant had a 15% schedule loss of use of the left hand.
On January 24, 2012, the claimant's attorney filed a form RFA-1LC (Request for Further Action by Legal Counsel) requesting a hearing to address the issue of permanency.
In response to Dr. Saunders' report, the Board issued a form EC-81.7 (Notice Regarding Possible Award for Permanent Injury [SLU]) advising that if the carrier accepted the opinion, the carrier was to file a form RFA-2 (Request for Further Action by Carrier/Employer) so that the Board could make the appropriate awards. The EC-81.7 further indicated that if it wished to obtain the opinion of a medical consultant on permanency, it should do so immediately, as the Board intends to close the record on the issue of permanency in 60 days.
On February 22, 2012, the carrier submitted a form RFA-2 indicating that the claimant's disability is now amenable to a schedule loss of use award.
On April 11, 2012, the carrier submitted a form RFA-2 indicating that payment of benefits should be transferred to the Special Funds pursuant to WCL § 25-a.
By proposed decision filed on April 12, 2012, the claimant was awarded a 15% schedule loss of use of the left hand; however, the carrier objected to the decision and the decision was cancelled. The carrier objected to the proposed decision noting that the case was ripe for WCL § 25-a.
During a hearing held on June 11, 2012, the Special Funds argued that the carrier should remain liable to pay the schedule loss of use based on its failure to obtain an IME. The carrier's attorney stated that the carrier had not disagreed with the 15% schedule award and made a "purposeful and cognizant" decision not to obtain a consultant's opinion, and that they had objected to the proposed decision solely on the basis that it had not said the award was made without prejudice to WCL § 25-a. The WCLJ awarded the claimant a 15% schedule loss of use of the left hand, discharged the carrier, and transferred liability of the claim to the Special Funds pursuant to WCL § 25-a, effective August 10, 2011. The WCLJ's findings were memorialized in a notice of decision filed on June 14, 2012.
"Once section 25-a(1) has been triggered, the insurance carrier has no further interest in payment of the claim. This statutory scheme contemplates that the Special Funds will step into the shoes of the insurance carrier and succeed to its rights and responsibilities" (Matter of De Mayo v Rensselaer Polytech Institute, 74 NY2d 459 ). Subsequent to the effective date of the transfer of liability to the Special Funds, "the Board should not [direct] any payments by the employer (see generally Matter of Castro v New York City Tr. Auth., 50 AD3d 1272 )" (see Matter of Lynch v Buffalo Bills, 62 AD3d 1061 ).
In Matter of New York State Police, 2013 NY Wrk Comp 59605741, the WCLJ found that liability transferred to Special Funds as of November 2, 2009, but found that the carrier was liable for the surgery for which an authorization was requested by Dr. Cecil on September 19, 2011, because the carrier failed to either authorize the procedure or to arrange for a medical examination. The Board Panel determined that the WCLJ incorrectly determined that the carrier remained liable for the claimant's surgery after finding that WCL § 25-a applied. In so doing the Board Panel reaffirmed that "There is no exception in statute or case law relieving the Special Funds of liability based on the carrier's misfeasance (Matter of Office of Children and Family Services, 2010 NY Wrk Comp 60114178; and Matter of American Felt & Filter Company, 2010 NY Wrk Comp 59808082)."
Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the effective date of the Special Funds' liability is August 10, 2011, and after that date, the carrier is discharged and the Special Funds is liable for the claim, including payment of the claimant's schedule loss of use award.
To the extent that there are prior Board Panel decisions which conflict with this decision, the Full Board expressly disavows and will not follow those decisions.
ACCORDINGLY, the WCLJ decision filed on June 14, 2012, is AFFIRMED. No further action is planned by the Board at this time.