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Case # G1160190
Date of Accident: 03/15/2015
District Office: Buffalo
Employer: Willcare Inc dba Willcare
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67811042
Date of Filing of Decision: 07/31/2017
Claimant's Attorney: Connors and Ferris, LLP
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on June 20, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed August 2, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether there is sufficient medical evidence in the record to support an award of benefits to the claimant subsequent to December 15, 2015.

The Workers' Compensation Law Judge (WCLJ) concluded that there was sufficient medical evidence in the record to support awards to the claimant subsequent to December 15, 2015, at the temporary partial disability rate of $150.00.

The Board Panel majority affirmed the findings of the WCLJ.

The dissenting Board Panel member found that the record does not contain sufficient medical evidence to support the award of benefits subsequent to December 15, 2015.

The carrier filed an application for Mandatory Full Board Review on August 11, 2016, arguing that a finding is required that the claimant is not entitled to continuing awards as the report of claimant's Dr. Smith does not constitute sufficient medical evidence to support such a finding. The carrier contends that Dr. Smith is not an authorized provider, his opinion that claimant has a 45% degree of disability was not based on an actual examination of the claimant, and his report was not on a Board prescribed medical form.

The claimant did not file a rebuttal.

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

FACTS

In a decision filed December 9, 2015, the WCLJ determined that the claimant had a work-related injury to her right knee that occurred on March 15, 2015, and issued awards to the claimant for the period from March 16, 2015, to October 22, 2015, at the temporary partial disability rate of $150.00 per week; determined there was no medical evidence for the period from October 22, 2015, to December 4, 2015; directed the carrier to pay a fee to the claimant's attorney in the sum of $300.00 as a lien on the award; and directed no further action.

By letter dated December 15, 2015, the claimant's treating physician, Dr. Smith, indicated the claimant continued to have significant right knee pain, and he ascertained the claimant's disability of the right knee to be 45%. In addition, Dr. Smith indicated that the claimant was capable of sedentary work, which included no prolonged standing or walking for more than 30 minutes at a time. Further, Dr. Smith indicated that the claimant should continue her care for further re-evaluation with an orthopedic specialist.

In an RFA-1LC (Request For Further Action By Legal Counsel) dated December 18, 2015, and filed with the Board on December 21, 2015, the claimant's attorney checked box 8(q) ("Other") and entered: "[The claimant] hereby requests an immediate hearing to award lost time, and avail herself to the protections set forth in [12 NYCRR 300.23(b)], as she has up to date medical evidence noting her degree of disability."

On February 24, 2016, a hearing was held to consider the questions of lost time and degree of disability. At the hearing, the claimant's attorney requested that the WCLJ make an award for the period from December 15, 2015, to February 25, 2016, and continuing, at the weekly rate of $150.00 based on the December 15, 2015, medical report of Dr. Smith. In response, the carrier's attorney argued that awards should not be resumed because there was no indication that the claimant was examined by Dr. Smith. The WCLJ made an award for the period from December 15, 2015, to February 25, 2016, and continuing, at the temporary partial disability rate of $150.00 per week.

The WCLJ's findings and awards were memorialized in a decision filed on February 29, 2016. The carrier requested administrative review of that decision. Claimant did not file a rebuttal.

LEGAL ANALYSIS

When, as here, a claimant's disability has not been classified as permanent, there is no presumption or inference of a continuing disability, and the claimant's attending physicians have the burden of submitting up-to-date medical evidence that the disability is continuing (see 12 NYCRR 325-1.3[b][3]; Matter of Virtuoso v Glen Campbell Chevrolet, Inc., 66 AD3d 1141 [2009]). The issue here is whether Dr. Smith's December 15, 2015, letter is sufficient evidence of disability to support the award of benefits.

Authorization

At the outset, it is noted that Dr. Smith is authorized by the Board to treat workers' compensation claimants under Authorization Number 198596-5W. Moreover, even if Dr. Smith was not authorized to treat injured workers, his reports would not necessarily be given no evidentiary weight (see Matter of Van Dam v New Paltz Cent. School Dist., 46 AD3d 1194 [2007]).

Proper Form

Dr. Smith's December 15, 2015, letter is not on a Board form authorized for reports of medical treatment (C-4; 4-4.2; C-4Narr; C-4.3).

12 NYCRR 325-1.25(b)(1) provides that:

Physicians, podiatrists, chiropractors, or psychologists authorized by the Chair to provide treatment and care under the Workers' Compensation Law to a claimant or self-employed occupational or physical therapists shall submit bills for services performed on or after December 1, 2010, on the appropriate forms and version as set forth in section 325-1.3 of this Subpart. Bills shall be submitted to the employer or insurance carrier either within ninety days from the last day of the month in which services were rendered, or ninety days from the last day of the month in which the claimant received the final treatment in a continuous course of treatment. Bills submitted in any other format or outside this time requirement shall not be eligible for an award by the Chair under the provisions of the Workers' Compensation Law as described herein.

12 NYCRR 325-1.3(a) provides that:

All medical reports filed by attending physicians and specialists must be on the most recent version, or such other version mandated by the Chair, of the forms prescribed by the Chair, must be fully completed and must contain the provider's authorization certificate number and code letters.

12 NYCRR 325-1.3(b) provides, in relevant part, that:

Every physician shall file all medical reports directly with the Chair, and also with the employer or the employer's carrier, if known, in the following intervals: (1) within 48 hours following first treatment; (2) within 15 days after filing the medical report filed within 48 hours after the first treatment; (3) thereafter during continuing treatment and without further request, a progress report for each follow-up visit to be scheduled when medically necessary except the intervals between follow-up visits shall be no more than 90 days.

12 NYCRR 325-1.3(d) provides that:

All medical reports of attending physicians must be filed on the form or forms prescribed by the Chair for such purpose. A prescribed form is identified by the assigned alpha-numeric combination and a date. Further, all forms must be submitted only in the manner authorized by the Chair. Failure to use the correct prescribed form or to submit the form in the proper manner may result in disciplinary action by the Chair.

While failure to use one of the forms prescribed by the Board for reports of medical treatment may result in the provider not being paid for the treatment (12 NYCRR 325-1.25[b][1]), or being disciplined by the Board (12 NYCRR 325-1.3[d]), there is no express authority for the Board to decline to consider the report as evidence based solely on the failure to use a prescribed form.

Evidentiary Weight of Report

Here, Dr. Smith's letter dated December 15, 2015, indicated the claimant continued to have significant right knee pain, and he ascertained the claimant's degree of disability of the right knee to be 45%. The doctor also indicated that the claimant was able to perform sedentary work, which included no prolonged standing or walking for more than 30 minutes at a time. Further, the doctor indicated that the claimant should continue her care for further re-evaluation with the orthopedic specialist.

Treating health care providers are strongly urged to use the Board authorized forms (C-4; C-4.2; C-4.3; C-4NARR), and failure to do may result in the provider not being paid for the treatment in question, and being subject to discipline by the Board, including suspension of the provider's authorization to treat insured workers (see WCL § 13(d); 12 NYCRR 325-1.3[d]). However, a medical report may nonetheless be considered sufficient evidence of disability even though it is not on a Board authorized form.

The Full Board rejects carrier's argument that Dr. Smith did not examine the claimant. There is no specific evidence to support that contention. In his December 15, 2015, letter, Dr. Smith specifically states the claimant continues to have significant right knee pain and he ascertained her disability to be 45%. It is reasonable to conclude that Dr. Smith reached these articulated medical opinions after examining the claimant, notwithstanding the fact his letter doesn't specify an exact examination date.

Therefore, the Full Board finds that, upon review of the record and based upon a preponderance of the evidence, there is sufficient medical evidence in the record to support an award for workers' compensation indemnity benefits subsequent to December 15, 2015.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 29, 2016, is AFFIRMED. No further action is planned by the Board at this time.