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Case # G1022053
Date of Accident: 10/16/2013
District Office: NYC
Employer: Pinnacle Industries II LLC
Carrier: American Zurich Insurance Co
Carrier ID No.: W036636
Carrier Case No.: 2440170752
Date of Filing of Decision: 04/20/2017
Claimant's Attorney: The Perecman Law Firm, PLLC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on March 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 24, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the claimant proffered sufficient evidence to establish permanency and, if permanency is established, what date it attaches; and,
  2. whether the claimant demonstrated attachment to the labor market.

The Workers' Compensation Law Judge (WCLJ) found, among other things, that the claimant did not cooperate with the independent medical examination (IME) and consequently found that permanency would attach no later than February 22, 2016 (the hearing date). The WCLJ further found that the claimant was not attached to the labor market.

The Board Panel majority modified the WCLJ decision to the extent that the majority rescinded the finding that permanency would attach no later than February 22, 2016, and instead found that there was insufficient credible medical evidence of permanency in the record at the time of the February 22, 2016, hearing. The majority affirmed the WCLJ's finding of no labor market attachment.

The dissenting Board Panel member would have affirmed the WCLJ decision in its entirety.

On November 7, 2016, the carrier filed a request for Mandatory Full Board Review requesting that the Board adopt the dissenting Board Panel member's opinion as the opinion of the Full Board. The claimant filed a rebuttal to the carrier's application on December 7, 2016, requesting that the majority's opinion regarding permanency be upheld by the Full Board.

The claimant filed an application for Mandatory Full Board Review on November 23, 2016, arguing that the majority erred in finding he was not attached to the labor market because there had not been a finding that he was partially disabled The carrier filed a rebuttal to the claimant's application on December 12, 2016, arguing that the finding of no labor market attachment was correct, as the carrier had raised the issue of attachment as early as October 2015 and the claimant's own treating physicians found only a partial disability.

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

FACTS

The instant case was previously established for October 16, 2013, injuries to the claimant's right shoulder, neck, back, and both knees (see EC-23 [6-3-14]). Awards were made without prejudice to apportionment with the claimant's associated case (WCB Case No. G0785564) (see id.).

The claimant was examined on behalf of the carrier on April 20, 2015, by independent medical examiner Dr. Sultan, who opined that on examination claimant's "cervical spine, lumbar spine, right shoulder and right knee fails to confirm any ongoing causally related disability" (see IME-4 [4-20-15]). Dr. Sultan found that claimant had reached maximum medical improvement (MMI) "without residual impairment" with respect to his neck and back, but had "not reached maximum improvement in regard to his right shoulder or right knee" (id.). Dr. Sultan noted that because claimant had undergone arthroscopic surgery on his right knee and right shoulder less than a year ago, it was "too soon to consider schedule loss evaluation" of those injuries (id.).

On August 11, 2015, the claimant was evaluated on behalf of the carrier by independent medical examiner Dr. Zimmerman, who stated that the claimant was at MMI, but that no permanency opinion could be given with respect to the claimant's neck and back injuries due to the claimant's lack of cooperation with the examination (see IME-4 [8-11-15], at p. 7). Dr. Zimmerman re-evaluated the claimant on November 17, 2015, but noted that "this claimant is less cooperative today than he was on my last examination" (IME-4 [11-17-15], at p. 7). He was, therefore, unable to render an opinion regarding permanency and noted: "As far as I am concerned, [the claimant] has no permanency. However, I cannot in good conscious offer a schedule loss of use determination because of his lack of cooperation" (id.).

In a WCLJ decision filed on October 29, 2015, the claimant's payments were stopped, and the parties were directed to produce medical evidence of permanency. The parties were also directed to depose the claimant's treating physicians and the carrier's independent medical examiners. The carrier raised the issue of labor market attachment at this time.

The claimant's treating physicians, Drs. Horowitz and Watkins, subsequently filed C-4.3 (Doctor's Report of MMI/Permanent Impairment) reports. Dr. Watkins opined that the claimant had reached MMI and had a 45% permanent impairment to the right knee and a 60% permanent impairment to the right shoulder (see C-4.3 [10-12-15], at p. 2). Dr. Watkins made no findings as to the claimant's non-scheduled losses (see id.). He approved the claimant for sedentary work (see id. at p. 3). Dr. Horowitz opined that the claimant had not reached MMI, and he approved the claimant for sedentary work with occasional lifting of no more than 10 pounds (see C-4.3 [11-11-15], at p. 2).

Drs. Watkins and Horowitz did not appear for their depositions. Independent medical examiner Dr. Zimmerman was deposed on December 28, 2015, and independent medical examiner Dr. Sultan was deposed on January 19, 2016, and January 27, 2016. During his deposition, Dr. Zimmerman described the claimant as "completely disingenuous during [the] examination[,]" noting that there was no reason for the claimant to use a cane and opining that there was "no explanation for the severe restriction of motion of both his neck and lower back" (Deposition Transcript, Dr. Zimmerman, 12/28/15, p. 13). Dr. Zimmerman testified that, as a result of the claimant's behavior, he was unable to offer an opinion regarding permanency (see id. at p. 16). In his deposition, Dr. Sultan testified that he found the claimant to be cooperative during the examination (see Deposition Transcript, Dr. Sultan, 1/27/16, pp. 12-13).

In a January 11, 2016, decision, the WCLJ found that none of the claimant's physicians were asserting a total disability, and thus the claimant was obligated to search for work within his restrictions and produce proof of the search.

When the case returned to the trial calendar on February 22, 2016, the claimant testified that he had not been looking for work since the last hearing, and thus the WCLJ found that the claimant was not attached to the labor market (see Hearing Transcript, 2/22/16, pp. 2-3). As memorialized in the February 25, 2016, WCLJ decision, the claimant's treating physicians were precluded, and the testimony of Dr. Zimmerman was found to be the most credible. The WCLJ also resolved the form C-8.1 issues in favor of the carrier and found that permanency would attach no later than the date of the hearing because the "claimant has failed to cooperate in the pursuit of his case" insofar as he was not cooperative during Dr. Zimmerman's IME (id. at p. 3).

The claimant sought administrative review of the February 25, 2016, WCLJ decision (see RB-89 [3-23-16]), and the carrier filed a timely rebuttal (see RB-89.1 [4-7-16]). While the application for administrative review was pending, the claimant underwent right shoulder surgery on June 14, 2016 (see C-4AMR [6-14-16]).

The claimant was also re-examined on July 5, 2016, by Dr. Zimmerman, who provided permanency opinions with respect to the claimant's neck, back, and knees. Specifically, Dr. Zimmerman opined that there was no permanency with respect to the claimant's back and neck injuries, and there was a 7 % schedule loss of use for the claimant's right and left knees (see IME-4 [7-5-16], at pp. 6-7). Dr. Zimmerman commented within his report that "the claimant is a malingerer" (id. at p. 7). Dr. Zimmerman explained that the claimant "does not give full effort during the examination" and based his opinion of the claimant's "lack of full effort on examination, his excessive complaints, use of a cane when he has a normal gait and sensory examination which does not follow any anatomic pathway" (id.).

LEGAL ANALYSIS

Permanency

Although he did not testify, Dr. Watkins filed a C-4.3 form in which he found the claimant to be at MMI as of October 9, 2015, and found the claimant's right knee and right shoulder to be amenable to schedule losses of use. Independent medical examiner Dr. Sultan testified that the claimant had no further causally related disability. As per independent medical examiner Dr. Zimmerman, the claimant was found to be at MMI at his August 11, 2015, examination, although the claimant refused to cooperate during the examination so that a permanency rating could be made.

Workers' Compensation Law (WCL) § 15(3)(w) limits the number of benefit weeks payable to a claimant with a non-schedule permanent partial disability and a date of accident or disablement on or after March 13, 2007. The WCL § 15(3)(w) caps do not begin to run until a final classification decision has been made, and the claimant is not "classified" with a "permanent" disability until a finding is made regarding the loss of wage earning capacity (Matter of Liberty Ashes Inc, 2015 NY Wrk Comp G0435091; Matter of Administration for Children's Services, 2015 NY Wrk Comp G0382601).

Here, claimant's refusal to cooperate with the IME has resulted in a delay of his classification. Such behavior should not be rewarded with a simple finding of no evidence of permanency. This is an example of what Board Subject Number 046-548 was attempting to avoid. That Subject Number, issued in 2013, noted the classification process has been plagued by non-compliance and bad faith delays. Consequently, when a claimant frustrates a classification decision by failing to cooperate with an IME, the date of his or her classification for cap purposes should be the date the WCLJ determines the claimant failed to cooperate.

The Full Board therefore affirms the WCLJ's finding that permanency would attach in this claim no later than the February 22, 2016, hearing date based on the claimant's failure to cooperate with Dr. Zimmerman's August 11, 2015, and November 17, 2015, independent medical exams.

Workers' Compensation Law § 13-a(4)(b)

When a claimant frustrates the employer's or carrier's right to engage an independent medical consultant, a suspension of payments for the challenged injuries may be warranted (WCL § 13-a(4)(b); Matter of Jasmine v Rainbow Grill, 115 AD2d 862 [1985]).

Here, in his August 11, 2015, report, the carrier's consultant, Dr. Zimmerman, stated that the claimant was at MMI, but that no permanency opinion could be given with respect to the claimant's neck and back injuries due to the claimant's lack of cooperation with the examination. In his November 17, 2015, report, Dr. Zimmerman noted that "this claimant is less cooperative today than he was on my last examination." Dr. Zimmerman was therefore unable to render an opinion regarding permanency and noted: "As far as I am concerned, [the claimant] has no permanency. However, I cannot in good conscious offer a schedule loss of use determination because of his lack of cooperation."

The Full Board finds that claimant's failure to cooperate during his examinations with Dr. Zimmerman deprived the carrier of its right to have claimant examined by an independent consultant in violation of WCL § 13-a(4)(b) (see NYC Dept of Corrections, 2012 NY Wrk Comp 0179495; Matter of AKW Systems Inc., 2012 NY Wrk Comp 09748201). Claimant has not received any ongoing lost wage benefits since the WCLJ suspended awards in the October 29, 2015, decision. Claimant will also be barred from receiving further lost wage benefits until such time as he fully cooperates with an examination by a medical examiner chosen by the carrier.

Labor Market Attachment

"[C]laimants with a partial disability have an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions" (Matter of Scott v Rochester City Sch. Dist., 125 AD3d 1083[2015][internal citations and quotation marks omitted]). "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions. By . . . at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again. [T]he Board's determination in that regard will be upheld if supported by substantial evidence" (Matter of Watts v Arnot Ogden Med. Ctr., 132 AD3d 1024[2015][ internal citations and quotation marks omitted]).

In this matter, none of the claimant's treating physicians found the claimant to be totally disabled. Both Drs. Watkins and Horowitz found that the claimant was able to perform sedentary work with occasional lifting of no more than 10 pounds. By a decision filed January 11, 2016, the WCLJ put the claimant on notice that he was obligated to search for work within his restrictions and to produce proof of those efforts. However, the claimant testified that he made no effort to search for work within his restrictions before the February 22, 2016, hearing.

Moreover, contrary to the claimant's contention, Knouse (260 AD2d 948) does not stand for the proposition that labor market attachment cannot be decided prior to a finding of partial disability. Rather, Knouse held that the Board improperly rejected uncontroverted medical testimony that the claimant was totally disabled by finding that the claimant had voluntarily withdrawn from the labor market. The claimant's argument that the Board's finding on attachment was premature lacks legal support.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that claimant is not attached to the labor market.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed February 25, 2016, is AFFIRMED. No further action is planned by the Board at this time.