NY Court Says Law Judge Must Limit Decision to Actual Issue at Hand
Illustrating the important point that a hearing officer or judge must stick to those matters that are specifically at issue, and not wander off to determine other questions that might have some relationship to the matter at hand, a New York appellate court reversed a decision by the state’s Board that had affirmed a WCLJ’s denial of a claimant’s C-4 authorization request to perform spinal surgery [Matter of Ozoria v. Advantage Mgt. Ass’n, 2021 N.Y. App. Div. LEXIS 3222 (3d Dept., May 13, 2021)]. The court stressed that the hearing, upon which the WCLJ’s decision was based, had been limited to whether claimant had sustained a further causally-related disability. When the judge took up two medical reports that suggested the requested surgery was inappropriate, and made a decision consistent with those reports that surgery should not be approved, without allowing the claimant to submit contradictory evidence or to cross-examine the employer’s experts, the claimant was unduly prejudiced.
Background
In September 2017, claimant was injured while working as a home health aide when she was assaulted by a patient. As a result of this incident, she stopped working and filed a claim for workers’ compensation benefits. Her claim was established for injuries to her back and neck, and she was awarded benefits. In January 2018, claimant was examined by David Gamberg, a pain management specialist, who diagnosed her with cervical and lumbar disc herniations and found that she was totally disabled. Claimant underwent a variety of medical treatments for her injuries, including acupuncture, physical therapy and steroid injections, and was prescribed anti-inflammatory and pain medications. When she reported to Gamberg that these treatments did not alleviate her pain, he referred her to a spine surgeon for a neurological consultation.
Shortly after this referral, claimant submitted to an IME by Vijay Sidhwani, another pain management specialist, who issued a report finding that claimant was no longer in need of further causally-related treatment for pain management, physical rehabilitation and physical therapy, and concluded that she was not disabled. The workers’ compensation carrier for the employer sought to suspend further payments based upon this report. Following a November 2018 hearing, a WCLJ suspended payments and ordered that the depositions of Sidhwani and Gamberg be taken on the issue of further causally-related disability.
In December 2018, Paul Ratzker, a neurosurgeon who was then treating claimant, submitted a C-4 authorization request to perform an anterior discectomy and fusion of claimant’s cervical spine. The carrier denied this request based upon the report of Bradley Cash, a pain management specialist who conducted a file review of claimant’s medical records and issued an independent medical report concluding that she was not a candidate for surgery and that the C-4 authorization request should be denied. Thereafter, the carrier updated its denial of the request based upon the report of David Storrs, a neurosurgeon who conducted a file review of claimant’s medical records and issued an independent medical report that reached the same conclusion as Cash.
Following the depositions of Sidhwani and Gamberg, the WCLJ issued a decision finding that claimant did not suffer a further causally-related disability after November 7, 2018. The WCLJ further found, after reviewing the reports of Cash and Storrs, that the carrier properly denied the C-4 authorization request for surgery on claimant’s cervical spine. A panel of the Board affirmed and claimant appealed.
Appellate Court: Claimant Denied Right to Cross-Examine
On appeal, claimant argued that the Board erroneously upheld the denial of the C-4 authorization request for surgery without first affording her the opportunity to cross-examine Cash and Storrs, the carrier’s consultants whose reports provided the basis for the denial. She noted that the authorization for surgery was not at issue at the November 2018 hearing before the WCLJ, which was limited to the issue of further causally-related disability. Claimant contended, therefore, that the Board effectively decided an issue that was not properly before it. The appellate court agreed.
The court said the transcript of the WCLJ’s November 2018 hearing revealed that the only issue in dispute at that time was whether claimant sustained a further causally-related disability, and that was the issue upon which Sidhwani and Gamberg disagreed. The WCLJ directed the depositions of these medical experts for the sole purpose of resolving the issue and ultimately credited the opinion of Sidhwani over Gamberg. The court stressed that the C-4 authorization request for surgery was not made until after the WCLJ ordered the depositions. It was, nevertheless, considered by the WCLJ, who upheld the denial even though claimant did not have any opportunity to submit contradictory medical evidence or cross-examine the carrier’s consultants.
The appellate court concluded that the issue of whether claimant suffered a further causally-related disability after November 7, 2018 was separate from the issue of whether she was a proper candidate for surgery. Under the circumstances presented, claimant was prejudiced by her inability to cross-examine the carrier’s consultants and should have been afforded the opportunity to so do under “tenets of due process.” The Board’s decision was accordingly modified, by reversing so much of the decision that denied the C-4 authorization request for surgery. The case was remitted for further consistent proceedings.