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Case # 00807358
Date of Accident: 01/10/2008
District Office: NYC
Employer: NYCHA
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.: NHA000006656
Date of Filing of Decision: 12/15/2016
Claimant's Attorney: Pyrros and Serres, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 15, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on June 29, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the Board Panel has jurisdiction to review the authorization for medical treatment made by an Order of the Chair.

The Order of the Chair authorized a left total knee replacement.

The Board Panel majority found that the carrier's application for administrative review was essentially a request for review of the issues addressed in the September 26, 2014, Order of the Chair and the January 26, 2015, order upholding the Order of the Chair. The Board Panel majority determined that it did not have the authority to review an Order of the Chair.

The dissenting Board Panel member would rescind the Order of the Chair and return the case to the hearing calendar for development of the record on whether causal relationship exists for the knee replacement surgery.

The carrier filed an application for Mandatory Full Board Review on July 26, 2016, asserting that the Order of the Chair should be rescinded because the MG-2 was not properly served on the carrier.

The claimant filed a rebuttal on August 24, 2016, asserting that the Order of the Chair is not reviewable pursuant to Workers' Compensation Law (WCL) § 23.

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

FACTS

This case was previously established for a work-related accident that caused injuries to both knees, both ankles and the left foot. The average weekly wage for the year before the January 10, 2008, accident was set at $481.09.

The claimant's treating doctor filed an MG-2 on August 12, 2014, seeking authorization for a left total knee replacement. The Board issued an Order of the Chair on September 26, 2014, which authorized the request for the left total knee replacement. The Order of the Chair specifically held that it was not subject to review pursuant to WCL § 23. The carrier submitted a letter on January 20, 2015, seeking to have the nearly four month old order rescinded because the doctor never properly served the MG-2 on the carrier, and it argued that the claim for the left knee "has been disallowed" after it was previously "established for work-related injury to the knees." The Board issued an order on January 26, 2015, which affirmed the Order of the Chair because the carrier's denial was defective. That affirmation also noted that neither order is subject to Board Panel review under WCL § 23.

In a decision filed March 27, 2015, the Workers' Compensation Law Judge (WCLJ) noted that the "law of the case" is that the total knee replacement had been authorized by an Order of the Chair.

The carrier applied for administrative review of the WCLJ's March 27, 2015, decision.

LEGAL ANALYSIS

An Order of the Chair is outside the scope of the Board Panel's review (see 12 NYCRR 324.3[d][6]; Matter of United Parcel Service, 2010 NY Wrk Comp 30303791; Matter of Livingston County, 2011 NY Wrk Comp 79905338). "If an Order of the Chair is defective or was improperly issued, the remedy is to make a written request to the Board for a rescission of the Order of the Chair, with notice to the other parties in interest, which will be addressed administratively by the Board. If it is administratively determined that the Order of the Chair should be rescinded, the Board will do so through a form EC-325.1, Rescission of the Order of the Chair. The Board Panel has no authority to direct that the Order of the Chair be rescinded" (Matter of Brentwood School District, 2013 NY Wrk Comp G0167813).

The recent holding in Pinkhasov v Auto One Ins., 140 A.D.3d 1487 (2016), does not require a different result. In Pinkhasov, the court held that an Order of the Chair only addresses medical necessity and not causal relationship. If the carrier here wished to contest the causal relationship for the left total knee replacement surgery, it should have timely filed a C-8.1B to object to the bill on these grounds, and sought to litigate the issue through the hearing process. The carrier did not file a C-8.1B objection after the left total knee replacement occurred, so this issue was not preserved for review.

Therefore, the Full Board finds that the carrier's application for administrative review filed April 20, 2015, was a request for review of the issues addressed in the September 26, 2014, Order of the Chair and the January 26, 2015, order upholding the Order of the Chair. As discussed above, the Board Panel and the Full Board lack jurisdiction to review an authorization made by the Order of the Chair.

CONCLUSION

ACCORDINGLY, carrier's application for administrative review filed April 20, 2015, is DENIED. The WCLJ decision filed March 27, 2015, is MODIFIED to rescind the statement that "The law of the case is that the tkr was authorized. EC325.2. tkr should not have been on an MG-2? Service?" but otherwise remains in effect. No further action is planned by the Board at this time.