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Workers' Compensation Board

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Case # 80204481
Date of Accident: 11/01/2001
District Office: Buffalo
Employer: Inter Community Memorial Hosp.
Carrier: Commerce and Industry Ins Co
Carrier ID No.: W058002
Carrier Case No.: 632004080
Date of Filing of Decision: 02/07/2018
Claimant's Attorney: Viola, Cummings & Lindsay LLP
Panel: Clarissa M. Rodriguez


The Full Board, at its meeting on December 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed April 19, 2017.


The issue presented for Mandatory Full Board Review is whether benefits should have been suspended because the claimant missed multiple independent medical examinations (IME).

The Workers' Compensation Law Judge (WCLJ) found that the claimant should be given a final opportunity to attend a carrier medical examination, and he authorized the carrier to suspend benefits if she missed the next scheduled IME.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant's benefits should have been suspended based on her failure to attend several scheduled IMEs.

The carrier filed an application for Mandatory Full Board Review on May 16, 2017, asserting that benefits should have been suspended from June 1, 2016, to October 21, 2016.

The claimant filed a rebuttal on June 7, 2017, arguing that the Board Panel majority opinion should not be disturbed.

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


This case is established for work-related injuries to the low back. The average weekly wage for the year before the November 1, 2001, accident was set at $891.47.

The carrier filed a request for further action dated June 20, 2016, asserting that the claimant failed to attend IMEs on April 30, 2015, October 15, 2015, April 6, 2016, and June 1, 2016. During the hearing on August 25, 2016, the claimant's attorney asserted that the claimant did not receive the IME notices despite the correct address being listed on them. The claimant's attorney explained that for a period of time the claimant's son had power-of-attorney for the claimant and was receiving her mail for her. The attorney for the carrier on the other hand confirmed that the carrier had no proof that the examination notices were mailed to the claimant other than copies of the notices themselves.

After reviewing all the evidence and hearing the parties' positions, the WCLJ directed the carrier to continue awards and schedule the claimant for another IME, but he authorized the carrier to suspend should the claimant fail to attend that IME. The claimant ultimately attended the IME.


A carrier, Special Fund, or self-insured employer is "entitled to have the claimant examined by a physician authorized by the a medical facility convenient to the claimant and in the presence of the claimant's physician, and refusal by the claimant to submit to such independent medical examination at such time or times as may reasonably be necessary in the opinion of the [Board, bars] the claimant from recovering compensation for any period during which he or she has refused to submit to such examination" (WCL 13-a[4][b]; see also 12 NYCRR 300.2[d][11]).

Thus, when a claimant frustrates the employer's right to engage an independent medical consultant, a suspension of payments for the challenged injuries is warranted (see Matter of Jasmine v Rainbow Grill, 115 AD2d 862 [1985]). In contrast, there is no basis to bar payments where the claimant's failure to attend an IME is not due to a refusal to submit to such examination, or where the claimant's refusal is reasonable (see Matter of Ferguson v Fruehauf Corp., 156 AD2d 880 [1989]).

In this case, there is no evidence that the claimant refused to attend these IMEs and the carrier offered nothing to contradict the claimant's assertion that she did not receive the notices. Additionally, the carrier took more than a year before raising the issue with the Board.

Therefore, the Full Board finds that the WCLJ's remedy to this situation, which actually resulted in the claimant attending an IME, was rational, reasonable and supported by the evidence presented to him, and therefore should be affirmed.


ACCORDINGLY, the WCLJ decision filed August 30, 2016, is AFFIRMED. No further action is planned at this time.