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Case # G0301119
Date of Accident: 04/29/2010
District Office: NYC
Employer: Department of Correction
Carrier: Police, Fire, Sanitation
Carrier ID No.: W846505
Carrier Case No.: 0072-10-80723
Date of Filing of Decision: 08/21/2017
Claimant's Attorney: Rella & Associates, PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on July 18, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed September 13, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the self-insured employer (SIE) should be precluded from cross-examining the claimant's treating physician; and,
  2. whether the report of the SIE's consultant should be precluded.

The Workers' Compensation Law Judge (WCLJ) found that the SIE waived its right to cross-examine the claimant's doctor, precluded the report of the SIE's consultant, and awarded claimant a 37.5% schedule loss of use (SLU) of the left arm.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would rescind the WCLJ decision and continue the case for medical depositions.

The SIE filed an application for Mandatory Full Board Review on October 13, 2016, arguing that the finding that claimant is entitled to a 37.5% SLU is not supported by the evidence of record. The SIE contends that depositions were properly placed on hold pending the outcome of its appeal on the issue of the establishment of the claim, and requests that the case be continued for depositions of Dr. Ganal and Dr. Wilson on the issue of claimant's permanency.

The claimant did not file a rebuttal.

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

FACTS

The claimant alleged that he sustained a left shoulder injury on April 29, 2010, while working for the employer. The SIE controverted the claim.

At a hearing on March 3, 2015, the WCLJ established this claim for the left shoulder, concluding that the claim was not barred by Workers' Compensation Law (WCL) § 28, and directed further development of the record on the issue of permanency with the testimony of the claimant's physician, Dr. Wilson, and the carrier's consultant, Dr. Ganal. The SIE noted its exception to the establishment of the claim, stating "[a]s of right now, I know that you have to set depositions, but this case will certainly be under appeal and nothing will be resolved." At the conclusion of the hearing, the SIE requested cross-examination of claimant's Dr. Wilson and the WCLJ directed the parties to depose Dr. Ganal and Dr. Wilson on the issue of SLU by May 29, 2015.

The findings made at the March 3, 2015, hearing were memorialized in a decision filed on March 6, 2015. The decision directs the parties to depose Dr. Ganal and Dr. Wilson and submit deposition transcripts to the Board by May 29, 2015. The WCLJ directed that "[r]equests for extension of time to file a deposition transcript(s), if any, must be filed prior to the date upon which the transcripts are due and must be in the form of an affirmation or affidavit" and that "absent good cause shown as to why a deposition was not taken and the transcripts filed as directed, the record may be closed and a decision rendered."

The SIE filed an application for administrative review on April 6, 2015, appealing the WCLJ's March 6, 2015, decision. The SIE argued that the WCLJ erred in finding that the claim is not barred by WCL § 28. The claimant's attorney filed a rebuttal on April 14, 2015.

In a letter dated March 18, 2015, addressed to Dr. Wilson and copied to the SIE, claimant's attorney affirmed that the telephone deposition of Dr. Wilson was scheduled for May 6, 2015, at 4:00 PM.

A subpoena was personally served on Dr. Ganal on April 24, 2015, requesting him to appear for a telephone deposition on May 20, 2015. The subpoena is signed by the claimant's attorney.

In a letter addressed to Dr. Ganal dated April 27, 2015, and copied to claimant's counsel, the SIE confirmed the doctor's telephone deposition was scheduled for May 19, 2015.

In correspondence addressed to the SIE dated May 1, 2015, the claimant's attorney cancelled the May 6, 2015, deposition of Dr. Wilson "[p]er NYC Law Department appeal."

In a Memorandum of Decision filed on January 8, 2016, a Board Panel affirmed the WCLJ's March 6, 2015, decision, concluding that the instant claim was not barred by WCL § 28.

Claimant's attorney filed an RFA-1LC (Request for Further Action by Legal Counsel) on January 12, 2016, requesting a hearing to address medical evidence of permanency. In a correspondence dated January 11, 2016, which accompanied the RFA-1LC, the claimant's attorney alleged that the SIE refused to participate in the depositions directed by the WCLJ at the March 3, 2015, hearing, and failed to cross-examine the claimant's treating physician, Dr. Wilson. The claimant's attorney also alleged that claimant was not afforded an opportunity to cross-examine Dr. Ganal, as his May 19, 2015, deposition was cancelled by the SIE based on their appeal.

At a hearing on February 8, 2016, the claimant's attorney stated on the record that depositions were scheduled on the issue of SLU, the SIE appealed the decision establishing the case, and the SIE cancelled the scheduled depositions. The WCLJ commented that the SIE should have proceeded with depositions. The claimant's attorney indicated that the SIE did not mention the depositions in their appeal, that depositions were set, a subpoena was issued and correspondence sent confirming the deposition of Dr. Ganal. The claimant's attorney reiterated that the SIE cancelled the deposition of Dr. Wilson on May 1, 2015, and that no one showed for the deposition of Dr. Ganal on May 20, 2015. When asked by the WCLJ to comment on the claimant's version of events, the SIE's attorney stated that "I am not disputing anything that [claimant's attorney] said." The SIE's attorney argued that while the establishment of the claim was on appeal the case was "on hold," and now that the appeal was resolved, and the establishment of the claim affirmed, the SIE would like to go forward with depositions. The WCLJ found that the SIE unilaterally cancelled the depositions without good cause and concluded the SIE waived its right to cross-examine the claimant's doctor, precluded the report of the SIE's consultant and awarded claimant a 37.5% SLU of the left arm. The claimant's attorney was awarded a fee in the amount of $10,500.00. The SIE noted its exception to the WCLJ's findings at the conclusion of the hearing.

The WCLJ's findings and awards made at the February 8, 21016, hearing are reflected in a decision filed on February 11, 2016. The SIE requested administrative review of the WCLJ decision, arguing that it is factually untrue that it cancelled the deposition of Dr. Wilson, and that it was the claimant's attorney who cancelled the deposition. SIE asserted that claimant's counsel misrepresented the facts of this matter at the February 8, 2016, hearing, and that the SIE's representative did not have access to the Board's electronic case folder at the time of the hearing. The SIE notes that claimant's attorney's May 1, 2015, letter indicates that it was claimant's counsel who cancelled the deposition of Dr. Wilson and that the record is silent as to why the deposition of Dr. Ganal did not occur.

In rebuttal, claimant's attorney argues that the WCLJ properly found that the SIE waived its right to cross-examine Dr. Wilson, as the party requesting the opportunity to cross-examine an opposing party's witness has the burden of ensuring the deposition takes place. The claimant's attorney further argues that the WCLJ properly precluded the report of Dr. Ganal, as the doctor and the SIE failed to appear at the doctor's scheduled deposition despite the service of a subpoena on the doctor by claimant's counsel. According to claimant's counsel, the SIE was contacted the day after Dr. Ganal's deposition was scheduled and advised that the SIE had cancelled the deposition because of its pending application for review. Claimant's counsel does not expressly deny or admit the SIE's assertion that he misrepresented the facts of this case at the February 8, 2016, hearing, but stated that "the facts purported in the self-insured employer's appeal still do not provide a scenario to overrule the Law Judge's findings at the February 8, 2016, hearing."

LEGAL ANALYSIS

Stay of Further Proceedings

While the payment of contested awards is stayed pending the outcome of an application for administrative review (WCL § 25[3][f]), there is nothing "that provides for a stay of proceedings during the pendency of an administrative appeal to the Board" (Matter of United Parcel Service, 2016 NY Wrk Comp G0439967; see also Matter of Manhattan & Bronx Surface, 2011 NY Wrk Comp 00810872; Matter of Pep Boys, 2010 NY Wrk Comp 00623376). The SIE's contention that depositions were on hold pending the outcome of its application for administrative review from the decision establishing the claim is therefore wholly without merit.

Cross-Examination of Medical Experts

In the decision filed March 6, 2015, the WCLJ directed the parties to depose Dr. Ganal and Dr. Wilson and submit deposition transcripts to the Board by May 29, 2015, and to file any requests for an extension of time to file a deposition transcript prior to that date by filing a written affirmation or affidavit. The WCLJ advised that "absent good cause shown as to why a deposition was not taken and the transcripts filed as directed, the record may be closed and a decision rendered." In his rebuttal to the SIE's application for review, claimant's attorney asserts that he was advised by the SIE that it had cancelled the May 19, 2015, deposition of its IME, Dr. Ganal, because of its pending application for review. In a letter to the SIE dated May 1, 2015, the claimant's attorney advised that the May 6, 2015, deposition of Dr. Wilson was being canceled "[p]er NYC Law Department appeal." The SIE continues to assert in its application for Mandatory Full Board Review that depositions were placed "on hold" pending the outcome of its earlier application for review.

Both parties appear to have taken the erroneous position that they were not required to go forward with depositions while the SIE's application for administrative review of the decision establishing this claim was pending. There is no evidence that after the scheduled depositions did not occur, either party sought to reschedule the deposition of the opposing doctor. Nor did either party request that the Board grant an extension of time to depose the opposing doctor prior to the May 29, 2015, deadline imposed by the WCLJ, or at any time prior to the February 8, 2016, hearing (see Matter of Raymond Desamours, 2016 NY Wrk Comp G1007356).

Neither party in this matter has acted with appropriate diligence or consistent with the WCLJ's direction concerning the conduct of depositions. Therefore, the Full Board finds that as neither party deposed the opposing physician and filed the deposition transcript prior to the May 29, 2015, deadline set by the WCLJ, nor made a request to the WCLJ for an extension of that deadline, both parties are hereby deemed to have waived the opportunity to cross-examine the opposing party's doctor. The matter is remitted to the WCLJ to render a decision on the issue of proper SLU based on the record, including the written SLU reports of Dr. Wilson and Dr. Ganal.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 11, 2016, is MODIFIED to rescind the SLU award and fee to claimant's attorney, without prejudice; to find that claimant waived the opportunity to cross-examine Dr. Ganal; to find that the SIE waived the opportunity to cross-examine Dr. Wilson; that the reports of Dr. Wilson and Dr. Ganal are not precluded; and to remit the matter to the WCLJ to render a decision on the issue of proper SLU based on the record, including the written SLU reports of Dr. Wilson and Dr. Ganal. The case is continued.