The Full Board, at its meeting held on February 11, 2014, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on July 23, 2013.
The issue presented for Mandatory Full Board Review is whether the claimant should have been granted an adjournment to produce medical evidence of permanency.
In a decision filed on May 2, 2012, the Workers' Compensation Law Judge (WCLJ) found that the report from Daniel Casper, a physician's assistant, was unreliable evidence of permanency because it had not been signed by a physician, and adjourned the case to allow the claimant to produce medical evidence of permanency.
In a Memorandum of Decision filed July 23, 2013, the Board Panel majority affirmed the WCLJ's decision, granting the claimant "one final opportunity to produce medical evidence of permanency from a physician."
The dissenting Board Panel member would have reversed the WCLJ, finding that the claimant should not be granted a further opportunity for development of the record.
In their application for Mandatory Full Board Review filed on August 21, 2013, the attorneys for the carrier argue that the Board Panel majority decision to direct further development of the record is incorrect because the claimant has consistently failed to produce competent medial evidence of permanency despite having ample opportunity to do so. Therefore, the carrier argues that the schedule loss of use opinion of its consultant should be accepted and implemented.
In a rebuttal filed with the Board on September 20, 2013, the attorneys for the claimant request that the carrier's application for Mandatory Full Board Review be denied, and that the Board Panel majority decision be affirmed in its entirety.
Upon review, the Full Board votes to adopt the following findings and conclusions.
This claim is established for injuries to the back and left shoulder that resulted from an accident on January 18, 2010.
An EC-4NARR report of an examination on August 23, 2011, indicating a schedule loss of use of the left arm was submitted to the Board from Dr. Youm's office. An attached narrative report was prepared and signed by Daniel Casper, a physician's assistant. Daniel Casper opined the claimant had a 60% schedule loss of use of the left arm.
Dr. Zaretsky, the carrier's consultant, submitted an IME-4 report of a schedule loss of use evaluation conducted on October 12, 2011. In the report from this examination, Dr. Zaretsky opined the claimant had returned to work performing his regular job duties and had a 30% schedule loss of use of the left arm.
An IME-3 form dated December 2, 2011, was filed by Dr. Zaretsky on December 5, 2011, to inform that the doctor had received substantive communication from the carrier. Dr. Zaretsky had received a letter on November 1, 2011 (ECF ID #189650329, p. 4), in which the carrier advised Dr. Zaretsky that surveillance had been conducted on the claimant, and requested that Dr. Zaretsky review the videotape surveillance and issue an addendum report.
Attached to the IME-3 form was an addendum report from Dr. Zaretsky that was dated November 18, 2011. In the report, Dr. Zaretsky stated that he reviewed the videotape surveillance and that this changed his permanency opinion from a 30% schedule loss of use to a 15% schedule loss of use of the left arm.
An EC-81.7 form had been sent by the Board on January 31, 2012, to advise the claimant that the carrier had medical evidence of permanency and to advise the claimant that, if he intended to produce medical evidence of permanency, a C-4.3 form must be filed within sixty days (i.e. March 31, 2012).
A hearing was held on April 27, 2012, to address the question of schedule loss of use. At the hearing, the carrier requested that claimant be awarded a 15% schedule loss of use. However, the claimant's representative requested an award for a 60% schedule loss of use. In the resulting decision filed on May 2, 2012, the WCLJ found the report from Daniel Casper was unreliable because it had not been signed by a physician. The case was adjourned in order for the claimant to produce medical evidence of permanency.
On September 20, 2013, a C-4.3 by Dr. Youm was filed with the Board which found that claimant had a 60% schedule loss of the arm.
The WCLJ has discretion to provide the claimant with a final opportunity to obtain clarifying medical evidence on the issue of permanency (Matter of Bombardier Inc, 2011 NY Wrk Comp 70806613).
Here, an EC-81.7 form had been sent by the Board on January 31, 2012, to advise the claimant that the carrier had medical evidence of permanency, based on Dr. Zaretsky's IME-4 report of the evaluation on October 12, 2011, in which he opined that the claimant has a 30% schedule loss of use of the left arm. However, prior to the time that the EC-81.7 form was issued, the claimant already had obtained an opinion from his physician's office that he had a 60% schedule loss of use of his left arm. As noted by the WCLJ, the opinion submitted by the claimant did not constitute sufficient evidence for a schedule loss of use award since it was not signed by a physician. However, the Board's EC-81.7 form did not acknowledge the claimant's medical evidence.
Therefore, the Full Board finds that it was reasonable for the WCLJ to grant the claimant one final opportunity to produce clarifying medical evidence of permanency from a physician.
ACCORDINGLY, the WCLJ decision filed May 2, 2012, is AFFIRMED. The case is continued.