NY Employer/Carrier May Preclude Medical Reports Without Enforcing Subpoenas
Yesterday, a New York appellate court held that the Board's decision to preclude medical reports of two of claimant's treating physicians was appropriate in spite of the fact that the employer's carriers had not sought to enforce multiple subpoenas duces tecum served on the physicians [Matter of DeLucia v. Greenbuild, LLC, 2020 N.Y. App. Div. LEXIS 2435 (3d Dept. Apr. 23, 2020)]. The court stressed that while the carriers could have enforced the subpoenas through court action pursuant to 12 NYCRR 300.10(c), they were not obligated to do so.
Background
Claimant submitted a workers' compensation claim for various injuries that he attributed to repetitive motion while working in construction as a drywall finisher. The employer's carriers controverted the claim and, in June 2017, the case was designated for expedited hearings (see N.Y. Workers' Comp. Law § 25[3][d]), and the parties were directed to submit — within 55 days — transcripts of depositions of three of claimant's treating physicians, George Kakoulides, Bennett Brown and Robert Lippe.
The depositions were not completed within the required 55 days. In fact, between August 2017 and January 2018, attorneys for the carriers served a series of five subpoenas duces tecum, with notices to take depositions, on each of the three physicians, directing them to appear on specified dates and to produce their treatment records. At two hearings held after the deadline — in October 2017 and December 2017 — a WCLJ essentially granted extensions of time in which to complete the depositions. At the December hearing, the WCLJ indicated that he would issue a reserved decision after the depositions were completed.
Brown and Lippe ultimately failed to appear on any of the dates repeatedly rescheduled for their depositions, and they were never deposed. After four nonappearances, Kakoulides, claimant's neurosurgeon, ultimately testified in February 2018, opining that claimant's diagnosis was "severe degenerative disc disease" but conceding that he was unable to offer an opinion regarding causation. With one exception, the only reason given for the physicians' nonappearances is the general statement that they were not available on the scheduled dates. The orthopedic surgeon who conducted an independent medical examination of claimant for the carriers submitted a report finding no evidence that claimant's diagnosis of generalized degenerative idiopathic osteoarthritis was causally related to his employment.
WCLJ's Decision – Board Affirms
The WCLJ issued a reserved decision disallowing the claim, finding that Brown and Lippe had failed to make themselves available for testimony and that Kakoulides was unable to provide evidence of causation. The Board affirmed, finding, among other things, that the testimony and reports of Brown and Lippe were properly precluded, rejecting claimant's request for additional time to arrange for their depositions. Claimant appealed.
Appellate Court Affirms: Carriers Were Not Obliged to Enforce Subpoenas
The court indicated that it was not persuaded by claimant's argument that the Board erred either in precluding the testimony and reports of Brown and Lippe or in disallowing the claim. It stressed that it was the claimant who bore the burden of establishing, by competent medical evidence, a causal relationship between his or her injuries and the employment. It agreed with the claimant that the carriers could have invoked court action to enforce and compel compliance with their subpoenas in order to cross-examine the treating physicians (see 12 NYCRR 300.10[c]), but it stressed the carriers were not ordinarily obligated to do so.
The court indicated that if the WCLJ's decision granting an additional adjournment required the carrier to enforce a subpoena, then the failure to do so would result in a finding that the carrier had waived its right to cross-examine the claimant's doctor. On the other hand, as was the case here, where the WCLJ's decision granting an additional adjournment was silent as to enforcement of a subpoena, no such obligation existed. The court added that, contrary to claimant's argument, the presumption contained in N.Y. Workers' Comp. Law § 21 (5) for medical reports did not limit the Board's authority to preclude the testimony and reports of treating physicians who failed to appear for depositions under subpoena.