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Case # G1007356
Matter of Raymond Desamours
2017 NY Wrk Comp G1007356

BOARD PANEL DECISION

By: Board Members Munnelly, Foster and Hull

Ruling:

The claimant requests review of the Workers' Compensation Law Judge's (WCLJ's) decision filed on January 20, 2016. The carrier timely filed a rebuttal.

ISSUES

The issues presented for administrative review are:

  1. Whether the WCLJ erred in precluding the claimant's doctor's testimony and striking his reports from the record;
  2. Whether the claim should be amended to include the right shoulder; and
  3. Whether an MRI of the cervical spine should be authorized.

FACTS

This case is established for the neck and right knee as the result of a July 17, 2013, accident. The average weekly wage is $250.00. A November 3, 2014, Notice of Decision found prima facie medical evidence for the right shoulder pursuant to Dr. Reddy's report from an October 1, 2013, examination. The carrier's consultant, Dr. Antoine, authored a report as the result of a November 26, 2014 examination finding that the pain in claimant's right shoulder was referred pain from the cervical spine, and that there was no evidence of a causally related injury to the right shoulder.

This case is centered around adjournments for medical testimony granted across four Notices of Decision. The first adjournment was granted in a January 16, 2015, Notice of Decision; the second adjournment was granted in a May 1, 2015, Notice of Decision; the third adjournment was granted in a July 3, 2015, Notice of Decision; and the fourth adjournment was granted in an October 5, 2015, Notice of Decision. A fifth adjournment was requested at a January 14, 2016, hearing.

A January 16, 2015, Notice of Decision directed the depositions of Drs. Reddy and Antoine on the issue of causally related right shoulder. The decision indicated that transcripts and memoranda of law should be submitted by April 13, 2015. The party requesting cross-examination was directed to arrange for and schedule the deposition, "giving notice to the deponent and parties and serving subpoena(s) whenever appropriate and/or necessary." Requests for extensions of time were to be filed prior to the deposition deadline.

Dr. Antoine, the carrier's orthopedic consultant, was deposed on March 30, 2015, at which time the doctor testified as follows: Claimant explained that he was loading luggage in his truck when the doorman pulled the hood on his head, causing the claimant to fall and injure his head, neck, right shoulder, and right knee. At the time of the doctor's examination, the claimant complained of pain in the neck, right shoulder, and right knee. On physical examination of the cervical spine, there was no muscle spasm upon palpation, however, there was mild tenderness upon palpation on the right. Neurological examination of the bilateral upper extremities revealed no atrophy, 5 over 5 muscle strength on each side, internal reflexes at 2+, and sensation to light touch within normal limits. There was no heat, swelling, effusion, edema, or crepitus. Range of motion of the right shoulder consisted of forward flexion to 120 degrees, extension to 40 degrees, abduction to 110 degrees, adduction to 80 degrees, internal rotation to 70 degrees, and external rotation to 40 degrees. The doctor found claimant to have referred pain from the cervical spine and noted that the right shoulder was negative for impingement. The doctor concluded that the right shoulder pain was referred from the cervical spine and that there was no evidence of a causally related injury to the right shoulder. The doctor further found an MRI of the cervical spine to be indicated. On cross-examination the doctor agreed that it would be "fair to say" that the claimant's limited range of motion of the right shoulder was indicative of a shoulder injury. The doctor was asked if it was possible that the claimant could have had referred pain from the cervical spine into the right shoulder as well as a right shoulder injury. The doctor responded, "It is possible." On re-direct examination, carrier's counsel asked the doctor if he was changing his opinion regarding the causal relationship of the right shoulder. The doctor responded, "I would say it is possible that it is related to the accident, but I can't say it is probable. I can say it is possibly related."

The Board file contains a Notice of Deposition dated March 10, 2015, and a subpoena dated March 18, 2015, from the carrier to Dr. Reddy announcing an April 8, 2015, deposition. A record was made of the scheduled deposition of Dr. Reddy on April 8, 2015. Claimant's counsel indicated that he had spoken with Dr. Reddy's office that morning and the doctor was not available to testify.

Claimant's counsel filed an affirmation with the Board on April 13, 2015, stating that although Dr. Reddy's deposition was scheduled for April 8, 2015, the doctor did not testify because "he was unavailable on that date." The affirmation noted that the parties were attempting to reschedule the deposition and that, as such, a 60 day extension was requested. A May 1, 2015, Notice of Decision directed the carrier to produce Dr. Antoine's transcript, and found that the extension to complete depositions was granted. The case was continued.

The Board file contains a Notice of Deposition dated May 5, 2015, submitted by the carrier and directed to Dr. Reddy announcing a June 19, 2015, deposition. On June 17, 2015, a record was made, in which claimant's counsel indicated that the doctor did not appear, and that he was not sure why. A July 3, 2015, Notice of Decision provided a final opportunity for the parties to depose Dr. Reddy within 60 days.

The Board file contains a Notice of Deposition dated July 23, 2015, directed to Dr. Reddy, and announcing an August 21, 2015, deposition. A statement was made on the record of a scheduled deposition on August 21, 2015, in which carrier's counsel noted that the doctor was subpoenaed but failed to appear. Claimant's counsel also made a statement on the record which did not include an explanation regarding the doctor's non-appearance. The carrier's counsel noted the doctor's failure to appear on two prior occasions and stated that the carrier intended to request preclusion of Dr. Reddy's reports.

An October 5, 2015, Notice of Decision was issued directing the parties to depose Dr. Reddy by December 29, 2015, and noting that this was the final opportunity. The decision included the language contained in the January 16, 2015, Notice of Decision with respect to the manner in which depositions were to be scheduled.

Claimant's counsel filed an affirmation on December 28, 2015, requesting a 60 day extension of the deposition deadline, noting that he was attempting to reschedule Dr. Reddy's deposition. Claimant's counsel specified that he was requesting an extension in the interest of justice because "claimant is claiming a significant injury to his right shoulder."

At a hearing held January 14, 2016, claimant's counsel requested an additional opportunity to depose Dr. Reddy. The carrier requested that the doctor be precluded from testifying and that his reports be stricken from the record. The WCLJ found that Dr. Reddy had missed three depositions, that he was precluded from testifying, and that his reports were stricken from the record. The WCLJ then heard oral summations in addition to the written summations the parties previously submitted. After hearing the parties' positions, the WCLJ found that Dr. Antoine's testimony that it was possible the right shoulder was causally related was insufficient to warrant amendment of the claim to include the right shoulder. The WCLJ additionally noted that causally related treatment was authorized to established sites. Claimant's counsel requested that an MRI of the neck be authorized. The WCLJ responded noting that the neck was an established site of injury and that treatment was governed by the Medical Treatment Guidelines.

A January 20, 2016, Notice of Decision was issued finding that Dr. Reddy was precluded from testifying, that Dr. Reddy's reports were stricken from the record, and that there is no causally related injury to the right shoulder. Medical treatment for established conditions was authorized.

LEGAL ANALYSIS

On appeal the claimant requests that the WCLJ's decision be modified to amend the establishment of the claim to include the right shoulder, and to provide an additional extension of time in which to complete Dr. Reddy's deposition. Claimant notes that Dr. Reddy recently retired and that "it would be advantageous to furnish him another opportunity to be produced to provide deposition testimony on this claim." Claimant argues that, even without Dr. Reddy's testimony, Dr. Antoine's testimony supports amendment of the claim. Claimant asserts that Dr. Antoine noted that a clinical examination alone is sometimes insufficient, and claimant requests authorization for an MRI of the cervical spine.

In rebuttal the carrier requests that the WCLJ's decision be affirmed. The carrier argues that claimant's request for an additional opportunity to depose Dr. Reddy must be denied as the doctor failed to appear for scheduled depositions on numerous occasions. The carrier contends that the doctor's testimony was properly precluded and that his reports were properly stricken from the record. The carrier asserts that, in the absence of medical evidence from his doctor, the claimant has failed to meet the burden of proof of causal relationship. Even considering Dr. Antoine's testimony, however, there is insufficient evidence of causal relationship as the doctor conceded only that there was a possibility the claimant sustained a causally related right shoulder injury.

Carrier's Request for Cross-Examination of Claimant's Treating Physician: First and Second Adjournments

12 NYCRR 300.10(c) provides that,

"When the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose. If the physician is not produced at such adjourned hearing, a further adjournment shall be granted only when the referee finds there is sufficient excuse for the physician's nonappearance, which excuse shall be noted on the record and conditioned upon the resort by the employer or its carrier, or special fund to a subpoena for the next hearing. If such adjournment is granted and the physician does not appear, unless extraordinary circumstances are shown, the referee shall proceed to determine the claim upon the evidence in the record. The obligation to invoke court action for the enforcement of the subpoena shall be that of the employer or its carrier or special fund."

In the present case, the claimant's counsel appeals the last in a series of five decisions addressing the cross-examination of Dr. Reddy. This appeal raises significant issues with respect to the proper procedure to grant adjournments for the cross-examination of claimant doctors and when such doctors' testimony should be deemed waived or precluded. As such, the Board Panel will clarify the proper procedures herein.

The Board Panel notes at the outset that this clarification is offered with respect to requests for cross-examination made by the employer, carrier, or special fund and not to requests for cross-examination of the carrier's consultant made by the claimant. The Board Panel also notes that matters placed on the expedited hearing calendar for controverted claims follow a separate procedure in this regard (see 12 NYCRR 300.38).

First, 12 NYCRR 300.10(c) allows for an adjournment to be granted upon a timely request for cross-examination. Where the cross-examination of the doctor does not occur within the timeframe prescribed, 12 NYCRR 300.10(c) provides for a second adjournment (or, in other words, for an extension to be granted) "when the [WCLJ] finds there is sufficient excuse for the physician's nonappearance." Additionally, the WCLJ's decision directing depositions should specify that extension requests be filed before the deposition deadline expires and in the case of a second adjournment, specifically direct that a subpoena be issued.

Requesting an extension of time for the cross-examination of the claimant's doctor is the responsibility of the carrier as it is the party seeking cross-examination and it must apply for such an extension in accordance with any directions set forth by the WCLJ. Where the carrier demonstrates in its request for an extension that it provided proper notice of the scheduled deposition, the attention must turn to whether claimant's doctor had a sufficient excuse for failing to appear, which can be set forth in a letter to the parties and Board.

In the event the WCLJ finds the doctor's excuse to be sufficient, a second adjournment may be granted. The Board has previously found hospital commitments to be a sufficient excuse (see Matter of Aircraft Service International, 2014 NY Wrk Comp G0575965). Scheduling conflicts are also a sufficient excuse. Simply asserting that the doctor is not available is not a sufficient excuse, as further clarification must be offered in order for the WCLJ to make a reasoned determination. This list is not exhaustive, however, and a determination regarding whether an explanation constitutes a sufficient excuse is within the discretion of the Board.

In the event the WCLJ does not find the doctor's excuse to be sufficient, the WCLJ should deny the request for a second adjournment. Then, the WCLJ should proceed to make a determination as to whether the carrier waived its right to cross-examination (in which case the doctor's reports may be considered) or if the doctor is precluded from testifying (in which case the doctor's reports are stricken from the record). Waiver is appropriate where the carrier fails to provide notice of the deposition, or has failed to take reasonable steps to schedule the deposition. (See Matter of Rose v International Paper Co., 290 AD2d 664 [2002]). Preclusion is appropriate where the carrier has acted properly with respect to notice and made a good faith attempt to schedule in a manner consistent with the deposition direction of the WCLJ.

With respect to the granting of a second adjournment, 12 NYCRR 300.10(c) provides that such adjournment must be "conditioned upon the resort by the . . . carrier . . . to a subpoena for the next hearing." Accordingly, if a second adjournment is granted, the carrier must be directed to subpoena the doctor for the rescheduled deposition.

Carrier's Request for Cross-Examination of Claimant's Treating Physician: Third Adjournment

Where the cross-examination of the doctor does not occur within the timeframe provided for in the decision granting the second adjournment, the carrier must comply with any direction for requesting a further extension of time. If the carrier properly requests an extension, the carrier must then demonstrate that it served a subpoena (as noted above, the decision granting a second adjournment is to include a direction for the carrier to serve a subpoena). In the event the carrier properly served a subpoena for a deposition within the specified timeframe, the attention must turn to whether extraordinary circumstances prevented the claimant's doctor from appearing.

If the WCLJ determines that the claimant's doctor set forth extraordinary circumstances, 12 NYCRR 300.10(c) allows for a further adjournment. Extraordinary circumstances include occurrences such as the performance of emergency surgery, or a doctor's personal medical emergency, although this list is not exhaustive. The Board has previously found an "office mix-up'" to not be an extraordinary circumstance (see Matter of Bellevue Hospital, 2014 NY Wrk Comp 00233319). The directions set forth in the WCLJ's decision are to specify the terms of the additional adjournment (i.e. the deadline and whether the filing of an affidavit of service or enforcement of a subpoena is required).

If the WCLJ determines that the claimant's doctor did not demonstrate extraordinary circumstances, 12 NYCRR 300.10(c) allows for the WCLJ to "proceed to determine the claim upon the evidence in the record." A denial of a request for a further adjournment will result in one of two ways: (1) a finding that the carrier has waived its right to cross-examine claimant's doctor, in which case the claimant's doctors reports will remain in the record; or (2) a finding that the claimant's doctor is precluded from testifying and that his reports are stricken from the record.

In Matter of Feliciano v Copstat Security Corporation, 29 AD3d 1243 (2006), the Appellate Division affirmed the Board Panel's affirmance of a WCLJ's decision wherein the reports of claimant's neurologist and chiropractor were precluded for the doctors' failure to appear on two occasion, the second of which was pursuant to a subpoena, without showing extraordinary circumstances for their nonappearance. The Appellate Division's decision focused on the explanations provided by claimant's doctors.

In Matter of Bed Bath & Beyond Inc., 2014 NY Wrk Comp G0525280, only one adjournment had been granted for the testimony of claimant's doctor, however, at the time of the hearing at issue, claimant's doctor had failed to appear on three occasions. The Board Panel determined that the carrier had waived the opportunity to cross-examine claimant's doctor, however, the decision also went on to discuss whether the doctor's reports should be considered. The analysis in this regard focused on the carrier's service and enforcement of a subpoena. The decision has since been relied upon for the proposition that, where claimant's doctor fails to appear for a subpoenaed deposition, the doctor's reports will still remain in the record unless the carrier enforces its subpoena (see e.g. Matter of Hilton Worldwide, Inc., 2016 NY Wrk Comp G1372058; Matter of Harrison School District, 2016 NY Wrk Comp G0629812; Matter of Dep't of Labor, 2016 NY Wrk Comp G0975711).

The Board Panel clarifies herein that the analysis set forth in Matter of Bed Bath & Beyond departs from the framework set forth in 12 NYCRR 300.10(c), as it does not focus on (1) how many adjournments had been granted, (2) whether the carrier complied with directions for scheduling the deposition, and (3) whether a sufficient excuse or extraordinary circumstances were present, as required by 12 NYCRR 300.10(c). If these elements are not considered, the issue of enforcement of the subpoena is not yet reached.

At the time of the third adjournment, if the WCLJ finds that no further adjournment is warranted, or if no such adjournment is requested, the WCLJ must again look to the reason for claimant's doctor's nonappearance and to the carrier's subsequent actions. If the WCLJ finds that the carrier has not demonstrated sufficient efforts to reschedule the deposition, subpoena the doctor, or enforce a previously served subpoena, if directed, the WCLJ may find that the carrier waived its right to cross-examine the claimant's doctor, and the doctor's reports will remain in the record. Conversely, if the WCLJ finds the carrier took appropriate steps to reschedule the deposition and the doctor failed to demonstrate extraordinary circumstances for his/her non-appearance, preclusion of the doctor's testimony and records is warranted (Matter of Feliciano v Copstat Security Corporation, 29 AD3d 1243 [2006]).

With respect to enforcement of a subpoena, if the WCLJ's decision granting a third adjournment required the carrier to enforce a subpoena, then the failure to do so should result in a finding that the carrier has waived its right to cross-examine claimant's doctor. If the WCLJ's decision granting a third adjournment is silent as to enforcement of a subpoena, however, no such obligation exists. While 12 NYCRR 300.10(c) notes only that the obligation to invoke court action is that of the carrier, the regulation does not specifically require that this occur after the second adjournment. To the extent Matter of Bed Bath & Beyond Inc., 2014 NY Wrk Comp G0525280, states otherwise, that decision is disavowed and will not be followed.

In the present case, the claimant appeals only the January 20, 2016, Notice of Decision, and his appeal requests only an additional adjournment of the case for Dr. Reddy to testify. Claimant does not specifically appeal the WCLJ's determination that the case was to be decided on the record without Dr. Reddy's reports. Because Dr. Reddy is the claimant's doctor, the claimant is not the proper party to request an extension. The claimant does not have a right to cross-examine his own doctor (see Matter of Ferguson v Fruehauf Corp., 156 AD2d 880 [1989]), and the party seeking cross-examination, the carrier, does not join in this request. To the contrary, the carrier elected not to request a further adjournment but rather to request a determination on the record after precluding Dr. Reddy's reports at the January 14, 2016, hearing. Moreover claimant's counsel's affirmation filed December 28, 2015, requested an extension on the basis that the claimant was claiming a significant injury to the right shoulder. This is neither a sufficient excuse nor an extraordinary circumstance. As such, the WCLJ's decision to deny claimant's request for an extension at the January 14, 2016, hearing was proper. To the degree that claimant's counsel makes an additional request for an adjournment on appeal, that request is also denied.

To an extent, claimant's counsel's request for an additional opportunity to cross-examine Dr. Reddy necessarily includes a request that the doctor's reports be considered. In the interest of justice, the Board Panel addresses this issue on appeal. At the January 14, 2016, hearing, four adjournments had been granted. After Dr. Reddy failed to appear at the August 21, 2015, deposition, the carrier announced its intention to request that the doctor be precluded from testifying. Although an additional adjournment was granted for the doctor's testimony, the carrier continued to request preclusion at the January 14, 2016, hearing. The carrier had never been specifically directed to subpoena the doctor although, as detailed above, this should have been included in the May 1, 2015, Notice of Decision granting a second adjournment. The carrier sent notice of three depositions, and Dr. Reddy failed to appear at each deposition. The Board Panel notes that, pursuant to the analysis detailed above, the ultimate finding of either waiver or preclusion may have differed had the determination been made at an earlier hearing, or should any of those decisions been appealed. However, in analyzing the events that had occurred by the time of the January 14, 2016, hearing, the Board Panel finds that the carrier provided notice of depositions consistent with the WCLJ's directions. After multiple adjournments beyond those provided for in 12 NYCRR 300.10(c), claimant's doctor failed to set forth any explanation as to why he failed to appear. Although claimant's counsel attempted to provide an explanation, there was no demonstrated extraordinary circumstance or even a sufficient excuse. As such, the preclusion finding also remains undisturbed.

Therefore the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that no further adjournments are warranted. Dr. Reddy's reports are precluded and stricken from the record for the doctor's failure to appear at multiple depositions in the absence of a sufficient excuse or extraordinary circumstances.

Right Shoulder

"It is axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121 [2008] [citations omitted]). The medical opinion need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 [2009]). It must, however, be an indication of sufficient probability as to the cause of the injury, and the medical opinion must be supported by a rational basis (id.). "[M]ere surmise, or general expressions of possibility, are not enough to support a finding of causal relationship" (Matter of Mayette v Village of Massena Fire Dept., 49 AD3d 920 [2008] [citations and internal quotation marks omitted]).

In the present case, although Dr. Reddy's reports were stricken from the record, the Board Panel will consider the report and testimony of Dr. Antoine with respect to the causal relationship of the right shoulder. Dr. Antoine made a reasonable concession during cross-examination when he stated that causal relationship was possible, however, this is insufficient to support a finding of causal relationship. The doctor later explained that he was unable to state that causal relationship was probable and, as such, there is not a rational basis upon which to amend the claim to include the right shoulder.

Therefore the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that the right shoulder was properly found not to be causally related.

Cervical Spine MRI

The neck is governed by the Medical Treatment Guidelines, which include guidelines for diagnostic imaging and testing procedures (see New York Neck Injury Medical Treatment Guidelines A.11; New York Neck Injury Medical Treatment Guidelines C.1.a).

Inasmuch as claimant's counsel referenced authorization for a cervical spine MRI on appeal, the Board Panel notes that there is no request before the Board from claimant's doctor. The January 20, 2016, Notice of Decision included a statement that medical treatment for established sites was authorized. As such, the Board Panel finds that no further action is necessary in this regard.

Therefore the Board Panel finds, upon review of the record and based upon a preponderance of the evidence, that claimant's doctor has not formally requested further treatment for the neck, and the neck is governed by the Medical Treatment Guidelines.

CONCLUSION

ACCORDINGLY, the January 20, 2016, decision is AFFIRMED.

No further action is planned at this time.

All concur.