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Workers' Compensation Board

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Case # G0648269
Date of Accident: 12/04/2012
District Office: Albany
Employer: Glens Falls Crossings LLC
Carrier: Arch Insurance Company
Carrier ID No.: W087381
Carrier Case No.: 003606003786WC01
Date of Filing of Decision: 03/24/2017
Claimant's Attorney: James Austin Trauring, Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting held on February 28, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on August 24, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the carrier should be precluded from producing an independent medical examination (IME) report on the contested issue of a causally related lower back injury, pursuant to Workers' Compensation Law (WCL) § 137 and 12 NYCRR 300.2.

The Workers' Compensation Law Judge (WCLJ) found that the carrier had waived the opportunity to submit an IME report.

The Board Panel majority affirmed the WCLJ decision because the IME exam "was unable to be conducted within the required time period because of the carrier and not the claimant."

The dissenting Board Panel member would grant the carrier additional time to obtain an IME.

In the carrier's application for Mandatory Full Board Review, it argues that their right to obtain an IME was improperly precluded because the claimant's attorney consented to the IME time change and, therefore, notice pursuant to WCL § 137(7) was waived.

The claimant argues in rebuttal that substantial evidence supports the WCLJ's and the Board Panel majority's findings precluding the carrier from producing an IME on the issue of causal relationship.

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

FACTS

This is a controverted claim for a lower back injury. At the December 15, 2015, hearing, prima facie medical evidence was found per the January 6, 2015, medical report of Dr. Herzog, the claimant's attending physician. The WCLJ gave the carrier until February 20, 2016, to obtain an IME report.

By an IME-5 (Claimant's Notice of Independent Medical Examination) dated February 1, 2016, the claimant was notified that an IME with the carrier's consultant, Dr. Soyer, was scheduled for February 17, 2016, at 11:30 am.

At a hearing on February 23, 2016, the claimant testified that she went to the February 17, 2016, IME appointment, but was sent home because the doctor was not there. Following the claimant's testimony, the WCLJ precluded the carrier from producing an IME (memorialized in a notice of decision filed on February 26, 2016).

In a notarized statement dated February 22, 20016, an employee of MedSource, the IME entity that scheduled the examination with Dr. Soyer, indicated that on February 11, 2016, Dr. Soyer requested that the time for the claimant's IME exam scheduled for February 17, 2016, be moved from 11:30 am to 8:45 am. The claimant's attorney's office was contacted by MedSource on February 11, 2016, and an employee indicated their approval of the time change and that they would advise the claimant of the time change. Correspondence confirming the change was faxed to the attorney's office on February 11, 2016 and MedSource called the claimant's attorney on February 15, 2016, and February 16, 2016, to confirm the change.

In its application for administrative review, filed on March 22, 2016, the carrier argued that the claimant's failure to attend the scheduled IME was the result of a miscommunication between the claimant and her counsel and was not the fault of the carrier.

In rebuttal, the claimant argued that the WCLJ decision should be affirmed because the carrier failed to furnish proper notice to the claimant to reschedule the IME.

LEGAL ANALYSIS

WCL § 137(7) provides that "The claimant shall receive notice by mail of the scheduled independent medical examination at least seven business days prior to such examination." 12 NYCRR 300.2(d)(1) provides that an IME notice must be on a form prescribed by the Chair (IME-5) and a copy of the notice must be sent to the Board on the same day it is sent to the claimant.

12 NYCRR 300.2(d)(1) also provides that a claimant may, by "written consent," waive the seven business day notice requirement when the IME exam,

is required for the purpose of determining authorization for special services for specialist consultations, surgery, physical or occupational therapy, imaging studies or special diagnostic or laboratory tests in accordance with Workers' Compensation Law Section 13-a(5), and a delay in authorization for such special services would result in a worsening of the claimant's condition or irreparable harm...

While 12 NYCRR 300.2(d)(1) does not discuss the notice requirements for IME examinations rescheduled at the carrier's request, it does provide that when,

a claimant requests that an examination be rescheduled, and the examination is rescheduled less than (7) seven business days after the request, the notice required under Section 137 need not be received (7) seven business days prior to the examination, but must be sent to the claimant as soon as possible in the same manner as required for the original notice under said section and this section.

Finally, 12 NYCRR 300.2(d)(12) provides that,

Except as otherwise provided, a claimant may not waive any of the rights provided under Workers' Compensation Law Section 137 in relation to independent medical examinations. A report of an examination that does not substantially comply with the requirements of Workers' Compensation Law Section 137 and this section, shall not be admissible as evidence for any of the purposes described in subdivision (b)(4) of this section in a workers' compensation proceeding, unless the party raising an objection to the admissibility of the report does not raise such objection in a timely manner.

Thus, read together, 12 NYCRR 300.2(d)(1) and (d)(12) require that in order to reschedule an IME examination at the carrier's election, a carrier must provide claimant written notice of the rescheduled examination on an IME-5 no less than seven business days prior to the rescheduled examination, and unless the examination is required to determine authorization of special services under WCL § 13-a(5), claimant cannot waive such notice.

Here, the claimant received proper notice, pursuant to WCL § 137(7) and 12 NYCRR 300.2(d)(1), of the original IME scheduled for February 17, 2016, at 11:30 am. The carrier's specialist then requested that the time for the February 17, 2016, IME examination be changed to 8:45 am. A review of the record indicates that the carrier contacted the claimant's attorney by telephone, but never sent written notice to the claimant about the change in the appointment time for the IME examination. The IME was not required to determine authorization of special services under WCL § 13-a(5).

Therefore, the Full Board finds, upon review of the record and based upon a preponderance of the evidence, that the WCLJ properly precluded the carrier from obtaining an IME on the question of a causally related lower back injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 26, 2016, is AFFIRMED in its entirety. The case is continued.