Matter of the Claim of Gary Troiano v New York City Housing Authority; Workers' Compensation Board
Attorneys and Parties
Brief Summary
Workers' compensation—whether a physician’s permanency report must be precluded for noncompliance with Workers' Compensation Law § 137 [requirements governing independent medical examinations and admissibility of IME reports] when the employer did not timely object under 12 NYCRR 300.2(d)(12) [requires parties to raise objections to noncompliant reports in a timely manner], and the scope of the Board’s authority to consider new arguments on administrative review under Workers' Compensation Law § 123 [grants the Board continuing jurisdiction and broad review powers].
The Workers' Compensation Board treated the physician as an independent medical examiner (IME), found claimant failed to comply with Workers' Compensation Law § 137, precluded the report, and reversed the Workers' Compensation Law Judge (WCLJ)’s acceptance of a 42.5% schedule loss of use (SLU).
The Board’s preclusion of the IME report and its reversal of the WCLJ’s award based on that preclusion.
Although the Board could consider the employer’s new argument, the employer’s objection to the report’s admissibility was untimely under 12 NYCRR 300.2(d)(12). The employer had a 75-day response window after filing and a subsequent hearing but failed to raise any § 137 objection; preclusion was therefore error.
Background
Claimant Gary Troiano, a retired employee of the self-insured employer New York City Housing Authority, had an established right wrist claim. In March 2023, Dr. Vasilios Kountis filed a permanency report assessing a 42.5% schedule loss of use (SLU) of the right wrist. The Workers' Compensation Law Judge (WCLJ) accepted the SLU after the employer did not meaningfully respond within the 75-day period. On administrative review, the employer—raising the issue for the first time—argued that Dr. Kountis was an independent medical examiner (IME) and that the report should be precluded for noncompliance with Workers' Compensation Law § 137 [requirements governing independent medical examinations and admissibility of IME reports]. The Workers' Compensation Board agreed, reversed the WCLJ, and precluded the report. The Board later denied claimant’s application for reconsideration and/or full Board review.
Lower Court Decision
In its July 11, 2024 decision, the Workers' Compensation Board held that Dr. Kountis functioned as an IME, that claimant failed to comply with Workers' Compensation Law § 137, and that the permanency report must be precluded; it therefore reversed the WCLJ’s acceptance of the 42.5% SLU. In its October 30, 2024 decision, the Board denied claimant’s application for reconsideration and/or full Board review.
Appellate Division Reversal
The Appellate Division held that, while the Board had discretion under Workers' Compensation Law § 123 [grants the Board continuing jurisdiction and broad review powers] to consider the employer’s new argument, it erred in precluding the report because the employer’s § 137-based objection was not raised in a timely manner as required by 12 NYCRR 300.2(d)(12) [requires parties to raise objections to noncompliant reports in a timely manner]. The court reversed the July 11, 2024 Board decision and remitted for further proceedings consistent with its opinion. The appeal from the October 30, 2024 denial of reconsideration was dismissed as academic.
Legal Significance
The decision reinforces that objections to the admissibility of IME-related reports under Workers' Compensation Law § 137 must be raised timely or are deemed waived under 12 NYCRR 300.2(d)(12). It also clarifies that the Workers' Compensation Board may entertain new arguments on administrative review pursuant to Workers' Compensation Law § 123, but that authority does not excuse a party’s failure to make timely evidentiary objections.
Employers must raise Workers' Compensation Law § 137/IME objections within the prescribed response window or at the earliest hearing; failure to do so renders later preclusion improper, even if the Board can consider new arguments on administrative review.