Calendar Date: October 20, 2017
Porter & Thomas, PC, Englewood Cliffs, New Jersey (Arthur
L. Porter of counsel), for appellant.
T. Schneiderman, Attorney General, New York City (Steven
Segall of counsel), for Workers' Compensation Board,
Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
July 28, 2016, which ruled, among other things, that claimant
sustained a further causally-related disability.
1991, and while working for the employer, a gold jewelry
manufacturer, claimant was robbed at gunpoint. In 2002, a
Workers' Compensation Law Judge (hereinafter WCLJ) filed
a decision finding that claimant had a work-related injury of
posttraumatic stress disorder (hereinafter PTSD), which was
thereafter affirmed by the Workers' Compensation Board.
After a hearing in 2015, a WCLJ found that claimant continued
to suffer from the previously established work-related PTSD
and that claimant had a temporary marked partial disability,
and she awarded compensation from the hearing date forward at
the tentative rate of $109.48 weekly. The Board affirmed the
WCLJ decision on administrative review, prompting this appeal
by the employer.
substantial evidence supports the Board's determination
of a further causally-related disability. Based on an
interview with claimant and psychological testing, the
psychologist Ranita Fooks opined that claimant suffered PTSD
as a result of the 1991 robbery. Fooks specifically opined
that claimant suffered from a temporary marked partial
disability and more generally explained that, when she
examined him, claimant "presented as pretty severely
disabled." A report from psychologist Elina Spektor
reached a similar conclusion, that claimant suffers a
temporary marked partial disability in the form of PTSD
resulting from the robbery. The foregoing provides
substantial evidence to support the Board's determination
(see Matter of Lucke v Ellis Hosp., 119 A.D.3d 1050,
1051 ; Matter of Giudi v New Paltz Fire Dept.,
101 A.D.3d 1347, 1348 ; Matter of Marillo v
Cantalician Ctr. for Learning, 263 A.D.2d 719, 721
we find without merit the employer's contention that the
decision should be reversed because the WCLJ found the
independent medical examination (hereinafter IME) report
inadmissible due to noncompliance with Workers'
Compensation Law § 137 (1) (a). Pursuant to Workers'
Compensation Law § 137 (1) (a), "[a] copy of each
report of [an IME] shall be submitted by the practitioner on
the same day and in the same manner to the [B]oard, the
insurance carrier, the claimant's attending physician or
other attending practitioner, the claimant's
representative and the claimant." 12 NYCRR 300.2 (d) (4)
(iii) more specifically provides that "[w]hen a claimant
treats with more than one attending physician or
practitioner, the independent medical examiner shall provide
a copy of the report of the [IME] to any attending physician
or practitioner who has treated the claimant in the past six
months for the condition that is the subject of the
[IME]." "IME reports that do not substantially
comply with Workers' Compensation Law § 137 will not
be admitted as evidence" (Matter of Estanluards v
American Museum of Natural History, 53 A.D.3d 991, 992
; see 12 NYCRR 300.2[d] ; see
generally Matter of Stoudenmyre v Loretto Rest Nursing
Home, 17 A.D.3d 906, 907 ).
the employer concedes that it failed to provide copies of the
IME to claimant's attending physicians, it argues that it
nonetheless substantially complied with Workers'
Compensation Law § 137 (1) (a). We reject the
employer's contention that by providing copies of the IME
report to some, but not all, of the individuals and entities
entitled to those copies pursuant to Workers'
Compensation Law § 137 (1) (a), it substantially
complied with that provision. Accordingly, we find no reason
to disturb the Board's determination that the IME report
was inadmissible (see Matter of Sola v Corwin, 98
A.D.3d 1203, 1204 ; Matter of Olczyk v Verizon
N.Y., Inc., 33 A.D.3d 1109, 1109 ). The
employer's remaining contentions have been considered and
are without merit.
McCarthy, J.P., Lynch, Devine ...