LOIS Senior Associate Stephen T. McLinden and Paralegal Avery Dover successfully reduced Carrier exposure in a New York Workers’ Compensation claim. The claim involves the cervical spine, lumbar spine, bilateral shoulders, bilateral elbows, and right knee. The claimant’s surgeon requested a cervical procedure. At the scheduled hearing to address medical necessity of the requested surgery, Attorney McLinden requested development of the record. The Law Judge directed depositions of the surgeon, Carrier’s IME consultant, as well as the prior authorization request (PAR) reviewing physician. Attorney McLinden challenged this directive, noting that the PAR framework does not authorize depositions or cross-examination of the PAR reviewing physician. Attorney McLinden invoked the case of Arlen Contracting Corp, which holds that a Law Judge’s only options are to approve or deny a PAR request. Despite Attorney McLinden’s appeal and continued litigation, the Law Judge ultimately approved the surgery by Reserved Decision, citing the PAR reviewer’s lack of personal examination, which is an inherent feature of Level 2 PAR reviews.
On appeal, the Board issued a unanimous Memorandum of Board Panel Decision rescinding the improper cross-examination ruling, finding Claimant has waived the right to cross-examine the IME by failing to timely request testimony, and disregarding testimony of the PAR reviewer that taken without legal basis. Moreover, the Board modified the Reserved Decision and denied the surgical request, eliminating significant exposure. As a result of this favorable outcome, the claim can now proceed toward resolution, including litigation over maximum medical improvement, as appropriate.
