CLAIMANT HAD THE RIGHT TO CROSS-EXAMINE THE CARRIER’S CONSULTANT, WHO DETERMINED CLAIMANT SUFFERED A 40% SCHEDULE LOSS OF USE, DESPITE THE FACT CLAIMANT NEVER FILED A COMPETING MEDICAL OPINION (THIRD DEPT)

The Third Department determined claimant’s counsel’s request to cross-examine the carrier’s consultant, who concluded claimant suffered a 40% schedule loss of use, should not have been denied on the ground claimant had not filed a competing medical opinion (C-4.3 form):

12 NYCRR 300.10 (c) provides, in relevant part, that “[w]hen 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.” As the Board correctly noted, although a claimant’s right to cross-examine a carrier’s consulting physician is not expressly referenced in the cited regulation, it “is permitted under tenets of due process” … . In this regard, a “claimant’s request for cross-examination is not invalidated by the failure to produce a C-4.3 [form]” … , but this right may be waived if not asserted in a timely manner … . Notably, “[t]he only requirement is that the request for such cross-examination must be timely made at a hearing, prior to the WCLJ’s ruling on the merits” … . Matter of Ferguson v Eallonardo Constr., Inc., 2019 NY Slip Op 05255, Third Dept 6-27-19