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Case # 00647781
Date of Accident: 10/14/2006
District Office: NYC
Employer: BFI
Carrier: Illinois National Ins Co
Carrier ID No.: W112254
Carrier Case No.: 709396152
Date of Filing of Decision: 06/09/2017
Claimant's Attorney: Marc L Schwartz Esq.
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on May 16, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 18, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the report and testimony of the carrier's independent medical examiner (IME) should be precluded.

The Workers' Compensation Law Judge (WCLJ) precluded the report and testimony of the carrier's IME.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would have found that the report and testimony of the carrier's IME should have been considered by the WCLJ.

The carrier filed an application for Mandatory Full Board Review on August 9, 2016, requesting that the reports and testimony of its IME be considered when determining claimant's degree of disability and awards.

The claimant did not file a rebuttal.

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

FACTS

This claim was initially established for an October 14, 2006, back injury, and claimant's average weekly wage was set at $1,047.29. The claim was later amended to include consequential depressive disorder.

Claimant was examined by the carrier's consultant, Dr. Kiltinen, on February 20, 2015. In her IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Kiltinen found that claimant had a mild partial disability and could return to full duty work as a truck driver. The carrier filed an ERFA-2 (Request for Further Action by Carrier/Employer) on May 14, 2015, requesting that claimant's benefits, which were being paid at the rate of $400.00 per week, be reduced to $175.00 per week.

By a decision filed June 15, 2015, the WCLJ directed the parties to depose the claimant's treating physicians, Dr. Faierman and Dr. Haftel, and the carrier's consultant, Dr. Kiltinen, and submit deposition transcripts to the Board by August 10, 2015.

On July 9, 2015, the Board received an affidavit from the office of claimant's attorneys requesting "that the Deadline for submission of deposition transcript be extended." The affidavit indicated that the deposition of Dr. Faierman was scheduled for September 10, 2015, "which due to vacation schedules and scheduling conflicts, is the first available date of all parties." The affidavit also stated that the depositions of Dr. Haftel and Dr. Kiltinen were in the process of being scheduled. The Board did not take any action in response to this request that the deadline for the submission of deposition transcripts be extended.

Dr. Haftel was deposed on August 21, 2015, and the transcript of his testimony was filed with the Board on August 28, 2015. Dr. Faierman was deposed on September 10, 2015, and the transcript filed with the Board on September 22, 2015.

On September 22, 2015, the Board issued a notice to the parties that a hearing had been scheduled for October 14, 2015, to consider the question of further causally related disability and directed the parties to submit deposition transcripts.

At the hearing on October 14, 2015, the carrier advised that Dr. Kiltinen had been deposed on September 10, 2015. The WCLJ noted that the transcript of Dr. Kiltinen's testimony was not in the file and that all deposition transcripts "were supposed to be produced by today" (transcript, 10/24/15 hearing, p. 2). The WCLJ therefore found that Dr. Kiltinen's report would be given no weight. The WCLJ found that claimant had a marked partial disability and made awards from June 11, 2005, forward at the temporary partial disability rate of $400.00 per week. The findings and awards made at the October 14, 2015, hearing were reflected in a decision filed October 19, 2015.

The transcript of Dr. Kiltinen's September 10, 2015, deposition was emailed to the Board on the afternoon of October 14, 2015.

The carrier requested administrative review of the WCLJ's October 19, 2015, decision. With its application for administrative review the carrier attached an affidavit from the stenographer who took the minutes of Dr. Kiltinen's September 10, 2015, deposition, stating the she emailed a copy of the transcript of Dr. Kiltinen's deposition to the Board on September 15, 2015. The carrier also attached a copy of the email from the stenographer dated September 15, 2015, indicating that the transcript was emailed to the carrier and the Board at wcbclaimsfiling@wcb.ny.gov.

Claimant did not file a rebuttal.

LEGAL ANALYSIS

The stenographer's affidavit and the copy of the September 15, 2015, email of the stenographer attached to the carrier's application for review show that the transcript of Dr. Kiltinen's testimony was emailed to the Board at wcbclaimsfiling@wcb.ny.gov on September 15, 2015, although it was not scanned by the Board into the record. The carrier received a copy of the transcript via the same email. Insofar as the carrier was aware, the transcript had been filed with the Board almost a month prior to the October 14, 2015, hearing, and the carrier had no reason to produce a copy of the transcript, or proof that it had been emailed to the Board on September 15, 2015, at the October 14, 2015, hearing. Therefore, the evidence submitted with the carrier's application for review should be considered.

Therefore, the Full Board finds that the preponderance of the evidence in the record supports a finding that Dr. Kiltinen's report and testimony should be considered when determining claimant's degree of disability and rate of compensation.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed October 19, 2015, is MODIFIED to make awards from June 11, 2015, forward payable at the tentative partial disability rate of $175.00 per week pending further development of the record. The case is continued for the WCLJ to consider Dr. Kiltinen's report and testimony when determining claimant's degree of disability and rate of compensation.