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Case # 00728225
Date of Accident: 06/19/2007
District Office: NYC
Employer: Equity Residential Properties
Carrier: Travelers Indemnity Company
Carrier ID No.: W212252
Carrier Case No.: CBW5504
Date of Filing of Decision: 10/04/2017
Claimant's Attorney: Alan M. Cass & Associates
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on September 19, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 28, 2016, and review of the Workers' Compensation Law Judge (WCLJ) decision filed September 6, 2016.

ISSUES

Mandatory Full Board Review

The issue presented for Mandatory Full Board Review is whether claimant waived her right to produce medical evidence of permanency.

The WCLJ provided the claimant a final opportunity to produce a medical report on the issue of permanency.

The Board Panel majority rescinded the WCLJ decision and found that the claimant had waived her right to produce medical evidence of permanency.

The dissenting Board Panel member would affirm the WCLJ.

The claimant filed an application for Mandatory Full Board Review on November 1, 2016, requesting that the Full Board adopt the decision of the dissenting Board Panel member. Claimant argues that she complied with the WCLJ's direction to produce a permanency report, and that the preclusion of the report was outside of her control.

The carrier filed a rebuttal on November 25, 2016, arguing that the claimant had ample opportunity to obtain a permanency report and that the Board Panel majority properly found that claimant had waived the opportunity to obtain a medical opinion on permanency.

Review of the WCLJ Decision filed September 6, 2016

In a decision filed September 6, 2016, the WCLJ considered the second report of the claimant's independent medical examiner (IME), precluded the report of the carrier's IME, found that claimant was totally industrially disabled and made awards.

The carrier requested administrative review of the WCLJ's September 6, 2016, decision, requesting, among other things, that the Board Panel reverse the WCLJ decision insofar as it precluded the report of the carrier's IME and considered the report of claimant's IME. The claimant filed a timely rebuttal asking that the WCLJ decision be affirmed.

The Board Panel has not yet rendered a decision on the carrier's application for administrative review. Because that application concerns related issues, and in the interest of judicial economy, the Full Board will also consider the carrier's request for review of the WCLJ's September 6, 2016, decision.

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

FACTS

On June 19, 2007, claimant was injured when a heavy door fell on her right side. The claim was initially established for a right wrist injury and was subsequently amended to include injuries to claimant's right shoulder, right arm, and neck. A claim for a back injury was disallowed because it was not timely filed pursuant to Workers' Compensation Law (WCL) § 28.

In a decision filed May 4, 2010, the WCLJ found that claimant was permanently partially disabled and had a 75% loss of wage earning capacity (LWEC). The WCLJ also concluded that claimant was attached to the labor market and made awards. The carrier sought review of that decision, arguing that claimant had voluntarily removed herself from the labor market and that the LWEC finding should be rescinded and the record developed further on the issue of LWEC. Claimant also sought review of the WCLJ decision, arguing that she should be found to be totally industrially disabled.

The Board Panel, in a decision filed August 5, 2011, modified the WCLJ's May 4, 2010, decision to rescind the finding that claimant had a 75% LWEC, but affirmed the decision in all other respects, including the permanent partial disability classification. The Board Panel continued the case for the parties to submit clarifying medical evidence on the issues of permanency and wage earning capacity.

At a hearing on October 14, 2015, the WCLJ stated that "[b]oth sides need to get permanency reports. Claimant to produce VDF-1" (transcript, 10/14/15 hearing, p. 2). The decision filed October 19, 2005, which reflects the findings and directions made at the October 14, 2015, hearing, states that "[c]laimant is directed to produce medical evidence of permanency on Form C-4.3, Doctor's Report of MMI/Permanent Impairment before or at the next hearing." The decision also directed the carrier to produce evidence of permanency on a Form IME-4 by the next hearing, and provided that if either party failed to produce medical evidence of permanency at or before the next hearing, they may be deemed to have waived the opportunity to do so.

On November 16, 2015, claimant was examined by the carrier's orthopedic consultant, Dr. Barschi. In the resulting IME-4 (Independent Examiner's Report of Independent Medical Examination), Dr. Barschi concluded that claimant had reached maximum medical improvement and that pursuant to the Board's 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity (Impairment Guidelines), claimant "exhibits a classification using table 11.2 of 3B to her cervical spine. She also would have restrictions of no lifting or carrying over 5 to 10 pounds and no reaching above her right shoulder level." The cover sheet of the IME-4 is signed by Dr. Barschi beside the typewritten date of "11/16/2015". Above Dr. Barschi's signature is a certification in conformance with 12 NYCRR (d)(4)(i)(e). The narrative report accompanying the cover sheet is also dated November 16, 2015, and is signed by Dr. Barschi.

At the next hearing, held on January 6, 2016, claimant's attorney stated that he "previously wrote [claimant's] doctor for a permanency report and did not receive one" (transcript, 1/6/16 hearing, p. 4). The carrier's attorney requested that claimant be precluded from producing a medical report on permanency and that the WCLJ implement the opinion of Dr. Barschi. The WCLJ found that claimant should be granted a final opportunity to obtain medical evidence on the issue of permanency and in the resulting decision filed January 11, 2016, directed claimant to produce medical evidence of permanency on a Form C-4.3 at or before the next hearing.

Claimant was examined by a chiropractor, Dr. Oshidar, on February 3, 2016, upon referral by her attorney. On February 23, 2016, Dr. Oshidar submitted a permanency report using Form IME-4 and Form C-4.3.

At the next hearing, held on March 9, 2016, the WCLJ precluded Dr. Oshidar's permanency report because it was not filed with the Board within ten days of the examination as required by WCL 137, but found that "since it was not claimant's fault, we'll give the claimant another opportunity to produce a permanency report" (transcript, 3/9/16 hearing, p. 4). The WCLJ continued the case to May 11, 2016, for claimant to produce a permanency report. The findings and directions made at the March 9, 2016, hearing are reflected in a decision filed March 14, 2016, which again indicated that this was a "[f]inal opportunity" for claimant to produce a permanency report.

The carrier requested administrative review of the WCLJ's March 14, 2016, decision, arguing that claimant should be found to have waived the opportunity to obtain a medical opinion on permanency and that the permanency findings of Dr. Barschi be implemented by the Board. Claimant filed a rebuttal arguing that the Board's decision was interlocutory and, therefore, not appealable, and that the case be continued as directed in the WCLJ's March 14, 2016, decision.

Subsequently, claimant was reexamined by Dr. Oshidar on March 24, 2016, and on March 28, 2016, Dr. Oshidar submitted a second permanency report based on that examination.

At the May 11, 2016, hearing, the WCLJ directed the parties to depose Dr. Oshidar and Dr. Barschi and to file deposition transcripts by August 9, 2016. Both doctors were deposed and transcripts of their testimony were submitted to the Board prior to the August 9, 2016, deadline.

Dr. Barschi was deposed on August 8, 2016, and testified that he is board certified in orthopedic surgery and examined the claimant on November 16, 2015, at the request of the IME entity retained by the carrier. On cross examination, Dr. Barschi testified that after the examination he dictated his report, which was then typed by the IME entity. It usually takes from two to five days for an IME report to be typed, and it is usually not typed on the same day as the examination. He testified that his IME-4 is dated November 16, 2015, and that is the date the report was dictated. He stated that he signed the IME-4 on the date it was dictated. Among the records he reviewed in conjunction with his examination of the claimant was the IME-4 report of Dr. Wert, which had previously been precluded. However, his report reflects his own independent medical opinion, and he did not rely on the report of Dr. Wert, or that of any other provider, in reaching his opinion.

On re-direct examination, Dr. Barschi testified that he did not sign his report before reading it. He routinely dictates his report on the date of the examination. The typed report is subsequently emailed to him, he then reads the typed report "and if it's appropriately correct, I then sign it" (deposition transcript, Dr. Barschi, 8/8/16, p. 18). On re-cross examination, Dr. Barschi clarified that he signs his reports after they are typed and returned to him, but the reports are dated the day he dictates the report.

At a hearing on August 31, 2016, the WCLJ precluded Dr. Barschi's report pursuant to WCL § 137 because the doctor signed and dated the IME-4 on the day he transcribed his report, not the date he reviewed the report, but declined the carrier's request to preclude Dr. Oshidar's second report. The WCLJ found that claimant was totally industrially disabled and made awards. The findings and awards made at the August 31, 2016, hearing are reflected in a decision filed September 6, 2016.

The carrier requested administrative review of the WCLJ's September 6, 2016, decision, requesting, among other things, that the Board Panel reverse the WCLJ decision insofar as it precluded the report of Dr. Barschi and considered the report of Dr. Oshidar. The claimant filed a timely rebuttal asking that the WCLJ decision be affirmed. The Board has not yet rendered a decision on that application.

LEGAL ANALYSIS

Waiver of Opportunity to Produce Evidence of Permanency-Mandatory Full Board Review of October 28, 2016, Board Panel Decision

In its decision filed August 5, 2011, the Board Panel continued the case for the parties to submit clarifying medical evidence on the issues of permanency and wage earning capacity. At a hearing on October 14, 2015, the WCLJ directed both the claimant and the carrier to submit medical evidence regarding the degree of claimant's permanent impairment at or before the next hearing.

At the next hearing, on January 6, 2016, claimant had not produced a permanency report as directed by the WCLJ and claimant's attorney stated that he "previously wrote [claimant's] doctor for a permanency report and did not receive one" (transcript, 1/6/16 hearing, p. 4). However, the record does not contain a copy of any correspondence from claimant's attorneys to any of claimant's treating providers requesting an opinion on permanency. The WCLJ granted the claimant a final opportunity to obtain medical evidence on the issue of permanency.

Prior to the next hearing, claimant was examined by Dr. Oshidar on February 3, 2016, upon referral by her attorney. Dr. Oshidar was not claimant's regular treating provider and had not previously treated or examined the claimant. Dr. Oshidar's report was not filed with the Board until February 23, 2016, and was precluded because it was not filed with the Board within ten days of the examination, as required by WCL § 137.

As found by the Board Panel majority, claimant had ample opportunity to produce a permanency report, and that instead of "acquiring a permanency report from her own treating physicians, the claimant instead chose to obtain an IME on the issue." In response to that finding, claimant's attorneys argue in their application for Mandatory Full Board review that "[t]here is no citation to the record as to whether or not the claimant had a choice of obtaining medical evidence from one of her treating doctors" and that claimant has treated sporadically since being found to be permanently partially disabled. However, claimant's attorneys do not claim that any attempt was made to obtain a permanency opinion from one of claimant's treating providers. Claimant treated with Dr. Mikelis for her neck injury on July 16, 2015 (doc. #254184945), but there is no evidence that claimant requested that Dr. Mikelis issue a permanency opinion.

Given these circumstances, the Full Board finds that claimant had ample opportunity to produce a permanency report, but failed to do so, and therefore waived the opportunity to present medical evidence with respect to the degree of her permanent impairment.

Preclusion of Dr. Barschi's Report - WCLJ Decision filed September 6, 2016

The carrier requested administrative review of the WCLJ's September 6, 2016, decision which precluded the report of Dr. Barschi, considered the report of Dr. Oshidar, found claimant to be totally industrially disabled, and made awards and attorney's fees.

The claimant filed a timely rebuttal asking that the WCLJ decision be affirmed.

12 NYCRR 300.2(d)(4)(i)(e) provides that a report based on an independent medical examination or review of records shall contain a signed statement certifying:

(1) that the report is a full and truthful representation of the independent medical examiner's professional opinion with respect to the claimant's condition in accordance with Workers' Compensation Law Sections 13-a (4)(e)(i), 13-k (3)(e)(i), 13-l(3)(e)(i) or 13-m (4)(e)(i), as appropriate;

(2) that no person or entity has caused, directed or encouraged the independent medical examiner to submit a report that differs substantially from the professional opinion of the independent medical examiner; and

(3) that the independent medical examiner has reviewed the report and attests to its accuracy.

12 NYCRR 300.2(d)(4)(ii) provides:

[An IME] report that does not bear the signed certification required in subparagraph (ii) of this paragraph shall not be sufficient to meet the requirements of Workers' Compensation Law Section 137 or this section, and shall not be admissible as evidence in a workers' compensation proceeding. The signed certification shall contain an original signature of the independent medical examiner made by such examiner after reviewing the report and shall not be a stamp or other method of reproducing a signature.

Here, Dr. Barschi credibly testified that he signed the IME-4 after reviewing the report. He further testified that his reports are dated on the day he dictates his report, rather than the date the report is typed or the date he signs the reports. There is insufficient evidence that Dr. Barschi signed the IME-4 cover sheet before reviewing his transcribed report, as alleged by claimant's counsel. Therefore, because the record reflects that Dr. Barschi signed the IME-4 containing the certification required by 12 NYCRR 300.2(d)(4)(i)(e) after reviewing his report, the doctor's report complied with 12 NYCRR 300.2(d)(4)(ii).

Furthermore, while Dr. Barschi reviewed the previously precluded report of Dr. Wert prior to rendering his opinion. Dr. Barschi credibly testified that he did not rely on the report of Dr. Wert, or that of any other provider, in reaching his opinion. Therefore, Dr. Barschi's report should not be precluded merely because he had reviewed the precluded report of Dr. Wert (see Matter of GC Alarm, Inc., 2013 NY Wrk Comp 20707981).

Therefore, the Full Board finds that the report and testimony of Dr. Barschi should be considered. As discussed hereinabove, as the claimant has been found to have waived the opportunity to present medical evidence with respect the degree of her permanent impairment, the second report by Dr. Oshidar, submitted on March 28, 2016, is precluded.

As the WCLJ considered the opinion of Dr. Oshidar, but precluded the opinion of Dr. Barschi, the finding that claimant is totally industrially disabled must be rescinded without prejudice. The matter is returned to the trial calendar for a determination of claimant's degree of permanent impairment, loss of wage earning capacity and whether claimant is totally industrially disabled, taking into consideration the reports ad testimony of Dr. Barschi, but without considering the reports of Dr. Oshidar. Although claimant has waived the opportunity to present medical evidence of the degree of his permanent impairment, claimant may produce medical evidence of employability which will be considered solely with respect to whether claimant is totally industrially disabled.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed March 14, 2016, is MODIFIED to find that claimant has waived the opportunity to present medical evidence with respect to the degree of her permanent impairment.

The WCLJ decision filed September 6, 2016, is RESCINDED and the matter restored to the trial calendar for a determination on claimant's degree of permanent impairment, loss of wage earning capacity and whether claimant is totally industrially disabled, as directed hereinabove. Awards are hereby made from January 7, 2016, to August 31, 2016, and continuing at the rate of $284.20 per week. Consideration of further attorney's fees is held in abeyance pending the resolution of these outstanding issues. The case is continued.