You are here: / / ALTHOUGH THE EMPLOYER WAIVED ITS OWN INDEPENDENT MEDICAL EXAMINATION, THE...
,

ALTHOUGH THE EMPLOYER WAIVED ITS OWN INDEPENDENT MEDICAL EXAMINATION, THE EMPLOYER RAISED SPECIFIC, SUBSTANTIVE OBJECTIONS TO CLAIMANT’S ORTHOPEDIST’S PERMANENCY FINDINGS, INCLUDING THE ALLEGATIONS THE ORTHOPEDIST DID NOT COMPLETELY REVIEW THE MEDICAL RECORDS AND DID NOT FOLLOW THE RELEVANT GUIDELINES; THE BOARD’S FAILURE TO ADDRESS THE EMPLOYER’S OBJECTIONS REQUIRED REVERSAL AND REMITTAL (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the board should have addressed the employer’s specific objections to the permanency findings of claimant’s orthopedist (Capiola), even though the employer did not produce its own independent medical report:

Upon administrative review, the employer renewed its objections that the credibility of the medical opinion was not based on a complete review of claimant’s medical records, that claimant had not reached MMI [maximum medical improvement], that the guidelines were not followed in rendering the medical opinion and that there was inconsistency between claimant’s medical condition and his physical restrictions. …

In its decision, the Board sets forth in detail the parties’ opposing positions and then adopted the findings and decision of the WCLJ [Workers’ Compensation Law Judge]. Neither the decision of the Board nor that of the WCLJ sets forth any reasoning or analysis of the substantive issues raised by the employer. Although there was no opposing medical opinion and the Board “may not reject an uncontradicted opinion that is properly rendered” … , the issues raised by the employer in its application for review challenged the propriety and reliability of Capiola’s permanency findings. The Board’s failure to specifically address the claims raised by the employer “depriv[ed] the employer . . . of the opportunity to have the Board consider the merits of . . . issue[s] that [were] properly preserved” and precludes any meaningful review by this Court … . Matter of Ippolito v NYC Tr. Auth., 2022 NY Slip Op 01493, Third Dept 3-10-22

Practice Point: Even though the employer waived the production of its own independent medical examination in this Workers’ Compensation case, the Workers’ Compensation Board should have considered the employer’s substantive objections to the permanency findings of the claimant’s orthopedist, including allegations the orthopedist did not review all the medical records and did not follow the relevant guidelines.

 

You might also like
Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained
RESPONDENT DID NOT CONSTRUCTIVELY DENY PETITIONER’S FOIL REQUEST BY EXTENDING ITS SELF-IMPOSED DEADLINES FOR RESPONDING TO THE REQUEST (THIRD DEPT). ​
THE FIDUCIARY TOLLING RULE TOLLED THE STATUTE OF LIMITATIONS IN THIS CONSTRUCTIVE TRUST ACTION AGAINST AN EXECUTOR (WHO WAS REMOVED BY THE COURT) UNTIL THE SUCESSOR FIDUCIARY WAS APPOINTED (THIRD DEPT).
NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT).
PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT).
THE WORKERS’ COMPENSATION BOARD PROPERLY FOUND CLAIMANT WAS AN EMPLOYEE OF A TRUCKING COMPANY AND A SPECIAL EMPLOYEE OF A COMPANY WITH WHICH THE TRUCKING COMPANY HAD A CONTRACT, THEREFORE THE WORKERS’ COMPENSATION AWARD WAS PROPERLY SPLIT BETWEEN THEM (THIRD DEPT).
HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT).
Untimely Initial Appearance Does Not Mandate Dismissal as Long as the Right to a Speedy Fact-Finding Hearing Is Not Violated

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE WORKERS’ COMPENSATION BOARD HAD PREVIOUSLY HELD THAT, IN A HEARING-LOSS... ALTHOUGH THIS SHAREHOLDERS’ DERIVATIVE ACTION AGAINST A SWISS CORPORATION...