You are here: / / ALTHOUGH CLAIMANT’S MEDICAL REPORT DID NOT ADHERE TO THE REQUIREMENTS...
,

ALTHOUGH CLAIMANT’S MEDICAL REPORT DID NOT ADHERE TO THE REQUIREMENTS OF WORKERS’ COMPENSATION LAW 137 AND COULD BE DEEMED INADMISSIBLE FOR THAT REASON, THE EMPLOYER FAILED TO MAKE A TIMELY OBJECTION TO THE REPORT; THE PRECLUSION OF THE REPORT WAS THEREFORE ERROR (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the medical report (by Dr, Kountis) finding claimant had a 42.5% schedule loss of use (SLU) of the right wrist should not have been precluded because it did not meet the requirements of Workers’ Compensation Law 137. Although the Board has the power to preclude the report for that reason, the employer did not make a timely objection to the report:

Although “[a] report of an examination that does not substantially comply with the requirements of Workers’ Compensation Law [§] 137 . . . shall not be admissible as evidence,” a party raising an objection to such a report’s admissibility must “raise [that] objection in a timely manner” … . Claimant filed Kountis’ report in March 2023, after which the employer was notified that it had 75 days to respond in any of several enumerated ways, including by filing a memorandum to refute the sufficiency and credibility of the report. At no time during that 75-day period did the employer challenge Kountis’ report for failing to adhere to the requirements of Workers’ Compensation Law § 137. Further, the employer failed to raise the argument during the subsequent hearing held in September 2023. It is clear that the employer had, and failed to avail itself of, ample opportunity to challenge Kountis’ report prior to the WCLJ’s determination. As a result, the employer’s eventual challenge was untimely, and it was error for the Board to preclude Kountis’ report … . Matter of Troiano v New York City Hous. Auth., 2025 NY Slip Op 06377, Third Dept 11-20-25

Practice Point: If there are grounds for precluding a medical report for failure to meet the requirements of Workers’ Compensation Law 137, the employer must make a timely objection to the report. Here the employer failed to object to the report during the 75-day period allowed for objections and failed to object in a hearing held six or seven months after the report was filed. The Third Department determined, under those facts, it was error to preclude the report.

 

You might also like
IF PLAINTIFF, A FOREMAN, HAD THE AUTHORITY TO STOP WORK BECAUSE OF RAIN, THEN HIS CONTINUING TO WORK MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; IF PLAINTIFF HAD BEEN INSTRUCTED TO WORK IN THE RAIN, THEN THE WET PLYWOOD MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; BECAUSE OF THE CONFLICTING OR ABSENCE OF EVIDENCE ON THESE ISSUES, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; TWO JUSTICE DISSENT (THIRD DEPT).
CLASS CERTIFICATION FOR PERSONS DENIED PUBLIC ASSISTANCE BASED ON THE FAIR MARKET VALUE (FMV) OF THEIR VEHICLES WAS PROPER; THE OPT-IN PROCEDURE SHOULD BE USED TO IDENTIFY CLASS MEMBERS (THIRD DEPT).
VERDICT FINDING THE SCHOOL DISTRICT WAS NEGLIGENT BUT FURTHER FINDING THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE STUDENT’S SUICIDE WAS NOT AGAINST THE WEIGHT OF EVIDENCE; PLAINTIFFS ALLEGED BULLYING AT SCHOOL CAUSED THEIR SON’S SUICIDE (THIRD DEPT).
THIS EMPLOYMENT DISCRIMINATION ACTION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).
DEFENDANT’S STATEMENT DURING THE PLEA COLLOQUY THAT HE HAD NO MEMORY OF COMMITTING THE CRIME DUE TO DRUG USE REQUIRED FURTHER INQUIRY BY THE COURT, GUILTY PLEA SHOULD NOT HAVE BEEN ACCEPTED, NARROW EXCEPTION TO PRESERVATION REQUIREMENT APPLIED.
INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).
THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT).
PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A DEFENDANT, BY HIS OR HER CONDUCT, CAN FORFEIT THE RIGHT TO A TRIAL BY 12 JURORS;... THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION IN DENYING A YOUTHFUL OFFENDER...