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Case # G1129988
Date of Accident: 08/05/2014
District Office: NYC
Employer: National Grid
Carrier: National Grid USA
Carrier ID No.: W556500
Carrier Case No.: B478402468000101784
Date of Filing of Decision: 09/06/2016
Claimant's Attorney: Severance, Burko, Spalter & Masone, PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 19, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed March 4, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the self-insured employer's (SIE's) request to cross-examine the claimant's treating physician was timely.

The Workers' Compensation Law Judge (WCLJ) precluded the SIE's IME report and awarded the claimant continuing benefits at the temporary total rate of $808.65.

The Board Panel majority affirmed the preclusion of the SIE's IME report, and modified the WCLJ's decision to continue the case for the SIE to be allowed the opportunity to cross-examine the claimant's physicians on the issue of degree of disability. The Board Panel majority modified awards to the claimant to the tentative moderate rate of $687.74. The Board Panel majority directed that all deposition transcripts and memoranda of law be filed within 60 days of the filing date of the Board Panel decision.

The dissenting Board Panel member would find that the SIE's request to cross-examine claimant's treating physicians was untimely, as it was not asserted until after awards had been made, and would affirm the WCLJ's decision.

The claimant filed an application for Mandatory Full Board Review on March 28, 2016, requesting that the WCLJ's decision be affirmed.

The SIE filed a rebuttal on April 27, 2016, asking that the decision of the Board Panel majority be affirmed.

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

FACTS

This case is established for a work-related injury to the claimant's right knee sustained on August 5, 2014, while the claimant was working for the SIE. Awards were made following the injury at various rates, but were suspended as of November 8, 2014.

The claimant's attorney filed an RFA-1LC (Request of Further Action by Legal Counsel) on December 23, 2014, requesting that a hearing be held to address proper rates of compensation based on the November 21, 2014, operative report of claimant's orthopedic surgeon, Dr. Baum.

Dr. Baum has consistently opined in medical reports filed between September 12, 2014, and March 27, 2015, that the claimant is totally disabled.

On March 27, 2015, the claimant was examined by the SIE's consultant, Dr. Jay, who opined that the claimant has a mild disability. The resulting report was filed with the Board on April 7, 2015, 11 days after the examination and one day beyond the time prescribed by Workers' Compensation Law (WCL) § 137.

At a hearing held on April 16, 2015, the following exchange occurred on the record between the WCLJ, the claimant's attorney (Mr. Passer), and the SIE's attorney (Mr. Longworth):

The Judge: Go ahead, Make your application.

Mr. Passer: Judge, at the last hearing there was a direction - well, basically for the purposes of addressing awards. The carrier was going to produce proof of payment records and any reimbursement request. My client advised me that they continued to pay him his salary up until two weeks ago; therefore, I don't -I didn't see the document requested in the Board file, but I would ask that the carrier produce an up-to-date one, as they only recently stopped paying him. And then as far as awards, today we're certainly looking for a CCP. We would ask that that be made at the max rate. We're asking for preclusion of Dr. Nathan's report, that it was not timely recorded. We'll ask for a CCP at $808.65 and an opportunity to come back to clear up the period before with an up-to-date reimbursement request and a proof of payment now that they have stopped paying him.

The Judge: Mr. Longworth?

Mr. Longworth: We're rejecting the claim of late filing of the IME report, if, in fact, it is deemed untimely. The timeliness would be an extremely minor infraction in relation of the claimed violation that would entitle the claimant to a continuing total disability rate. So we totally reject that argument and seek reinstatement of benefits, if in fact that is the claim, at the 25 percent disability rate.

The Judge: Given the fact that the IME was served 15 days rather than 10, as required by Section 137 or 300.2, according to the records, the IME was served 15 days late; therefore it is precluded as being late. Carrier, I'll note your exception. I'm also going to direct the carrier to produce the reimbursement request and payment records, and accordingly I am going to CCP. And if the carrier wants to get an IME in the meantime and serve it timely, we'll deal with the necessary rate at that time. But so we're going to pick up from 4/17/15. I'm just going to CCP, I'm not going to pick it up. I'm going to CCP at 808.65 TT. Again, I noted the carrier's exception.

Mr. Longworth: Not only would I note our exception, we seek development of the medical reports with cross examination of the claimant's physician with respect to the degree of disability, noting that the current available medical record, I do not believe, sets forth a degree of disability. But if I stand to be corrected, please do so.

Mr. Passer: Yes, with regards to that, both Dr. Baum and Dr. Narkhede have medical records each findings 100 percent degree of disability to the right knee. My client has both of those doctors giving at 100 percent.

The Judge: Let's come back, if we have to, when you have a new IME. We'll litigate at that point. In the meantime, let's come back July 2nd, at 10:30, 15 minutes. Carrier to produce up-to-date payment record and reimbursement request.

Mr. Passer: We'll request $250 on the CCP, Judge.

The Judge: $250 is approved.

Mr. Passer: Thank you very much.

The WCLJ's resulting decision, filed on May 13, 2015, held awards from November 8, 2014, to April 16, 2015, in abeyance, and directed the SIE to commence awards at the temporary total rate of $808.65 per week. The SIE sought administrative review of that decision.

LEGAL ANALYSIS

12 NYCRR 300.10(c) provides, in part, that when the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose upon a timely request. The failure of the carrier to submit a consultant's report is not fatal to a carrier's or an employer's right to cross-examine the claimant's doctors (see Pugliese v Remington Arms, Inc., 293 AD2d 897 [2001]). Even in circumstances where the carrier or employer has been precluded from producing medical evidence, the carrier or employer may still dispute the claimant's condition where there has been no express or implied agreement with regard to the claimant's condition (see Matter of Hutchins v Callanan Industries, 293 AD2d 902 [2002]).

A carrier's request to cross-examine a treating physician is untimely when it comes "at the conclusion of the hearing" (McKenzie v Revere Copper Products, 39 AD3d 1035 [2007]) (see also NYC Transit Authority, 2012 NY Wrk Comp G0225040; NYC Transit Authority, 2012 NY Wrk Comp 00347452; and NYC Police Dept., 2014 NY Wrk. Comp G0969858).

The Full Board finds that in this matter, the SIE's request to cross-examine the treating physicians, which was made prior to the conclusion of the hearing on April 16, 2015, was timely, and should have been granted by the WCLJ.

However, the Board Panel majority directed that all deposition transcripts and memoranda of law be filed within 60 days of the filing date of the Board Panel decision on March 4, 2016. There is no stay of a Board direction pending resolution of a request for Mandatory Full Board Review (see Matter of Schneider National Carriers, 2011 NY Wrk Comp 90801069), and the SIE neither filed the deposition transcripts nor requested an extension to depose the doctors prior to that deadline. Therefore, the SIE waived the opportunity to cross-examine claimant's treating physicians. In the absence of medical evidence to the contrary, the direction to continue benefits at the temporary total rate of $808.65 made by the WCLJ in the decision filed May 13, 2015, must be reinstated.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 13, 2015, is MODIFIED to find that the SIE timely requested the opportunity to cross-examine claimant's physicians, but in all other respects remains in effect. No further action is planned by the Board at this time.