The claimant was injured on October 10, 2019, while stepping on stairs to a truck, the stairs gave out causing him to fall. The claim was established for a work related injury to the left knee. The claimant was laid off as of April 2, 2020 due to COVID-19 and lack of work, not related to the injury sustained in the accident. Therefore, no awards were issued for lost time.
An IME was performed on March 1, 2022 diagnosing the claimant with a left knee strain with baseline degenerative changes. He opined that the claimant had reached MMI with a 0% SLU of the left knee.
An RFA-2 was filed on April 1, 2022 requesting to address permanency. The Board issued an EC-81.7 on April 12, 2022 giving the claimant the option to accept the opinion of the IME or obtain his own opinion within 60 days. Claimant’s counsel filed an RFA-1 on June 8, 2022 requesting an extension of time be granted to obtain a treating permanency report. The Board responded on August 17, 2022 with an ERFA-1.1 noting that no extension will be granted as the RFA was from June and there was still no C-4.3 in August.
Claimant’s physician, then performed a permanency exam on September 29, 2022 and filed a C-4.3 on October 26, 2022. This was 4 months after the deadline to produce same had passed. The Board, likely not realizing the prior EC-81.7 and ERFA-1.1, filed a new EC-81.7 on November 9, 2022, noting the report of the treating physician and giving the carrier 75 days to accept the opinion, obtain an IME, cross-examine the treating physician or reach an agreement.
LOIS filed an RFA-2 pointing out the prior EC-81.7 and ERFA-1.1 and requested cancellation of the November 9, 2022 EC-81.7, preclusion of the treating physician’s C-4.3 for failure to comply with the initial EC-81.7 and implementation of the 0% opinion of the IME.
At a hearing the Law Judge addressed the RFA-2. LOIS attorney Adam Lowenstein argued that the claimant failed to comply with the EC-81.7, the extension request was denied as by that point there was still no permanency report, that the second EC-81.7 never should have been issued and therefore the permanency report of the treating physician must be precluded and the IME opinion on permanency implemented. Claimant’s counsel argued that a surgery request was granted after the IME report on permanency was issued and therefore a new IME opinion is needed and the new EC-81.7 should stand. We argued that despite the surgery being granted, the claimant did not proceed with it, therefore there was no change in condition after the original IME opinion and the Board denied the extension request after the surgery was authorized, but not performed. Ultimately the Law Judge agreed with our position and precluded the C-4.3 of the treating physician as no good cause was shown for failure to comply with the original EC-81.7. He further agreed that the second EC-81.7 should never have been issued as the carrier already had filed a permanency opinion. Based on the conclusion reached from our arguments, the Law Judge found no permanency to the left knee and marked the case no further action.
