Matter of Duncan v. John Wiley & Sons, Inc.

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 17, 2016 519095
520141
________________________________
In the Matter of JENNIFER
DUNCAN,
Appellant,
v
JOHN WILEY & SONS, INC., et al., MEMORANDUM AND ORDER
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: February 11, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
__________
Norton & Christensen, Goshen (Henry N. Christensen Jr. of
counsel), for appellant.
Ryan, Roach & Ryan, LLP, Kingston (John D. Dunne of
counsel), for The Hartford, respondent.
__________
Clark, J.
Appeals (1) from a decision of the Workers' Compensation
Board, filed April 15, 2013, which, among other things, directed
that claimant submit to an independent medical examination, and
(2) from a decision of said Board, filed August 22, 2014, which,
among other things, ruled that claimant's workers' compensation
benefits be suspended for failure to submit to an independent
medical examination.
This Court previously affirmed a decision of the Workers'
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Compensation Board that found that claimant sustained an
accidental injury – identified as multiple chemical sensitivity –
during the course of her employment due to prolonged exposure to
noxious fumes during workplace renovations in 2000 and awarded
her workers' compensation benefits (Matter of Duncan v John Wiley
& Sons, Inc., 54 AD3d 1124 [2008]). In connection with the
establishment of claimant's accidental injury, the workers'
compensation carrier was directed to produce a consultant's
report on the question of permanency. When no independent
medical examination (hereinafter IME) was performed for over five
years due, in part, to the numerous conditions imposed by
claimant and her doctor regarding the transportation to and
location of the IME in an effort to accommodate claimant's
disability, a Workers' Compensation Law Judge (hereinafter WCLJ),
by decision dated October 20, 2011, directed the parties to try
again to reasonably accommodate each other in having claimant
examined at an IME.
Thereafter, claimant filed a request for further action due
to the carrier's failure to produce an IME. Following a May 4,
2012 hearing, a WCLJ, noting the obstacles presented by the
numerous and changing restrictions imposed by claimant's doctor
regarding transportation to and location of an IME, ordered that
an IME take place at claimant's home inasmuch as claimant is
routinely attended to at home by visiting nurses1 from Sullivan
County. The WCLJ also directed that the IME doctor, among other
things, comply with the examination restrictions set forth by
claimant's doctor. The Board, by decision filed April 15, 2013,
affirmed the WCLJ's order of an in-home IME, noting that claimant
risks a possible suspension of benefits upon noncompliance.
Claimant's request for reconsideration and/or full Board review
was denied.
Subsequent attempts to schedule an IME both at claimant's
home and at a doctor's office were unsuccessful. By decision
dated August 22, 2014, the Board suspended claimant's lost wage
1
Claimant asserts that the individuals are personal care
aides, not visiting nurses.
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benefits based upon her failure to attend an IME. Claimant
appeals from both the Board's April 15, 2013 decision directing
an in-home IME and its August 22, 2014 decision suspending her
workers' compensation benefits.
To the extent that claimant challenges the WCLJ's authority
to order an in-home IME, this issue was not raised before the
Board and, therefore, is not preserved for our review (see Matter
of Thomas-Fletcher v New York City Dept. of Corr., 120 AD3d 867,
867 [2014]; Matter of Cerbasi v County Metal & Glass, Inc., 115
AD3d 1084, 1085-1086 [2014]; Matter of Barone v Interstate
Maintenance Corp., 73 AD3d 1302, 1303 [2010]). Similarly,
claimant's contention that she was denied due process by the
WCLJ's failure to contact her by telephone for the May 4, 2012
hearing is also not preserved for our review inasmuch as
claimant's counsel did not object at the hearing nor was the
issue raised in the application for Board review (see Matter of
Witkowich v SUNY Alfred State Coll., 80 AD3d 1099, 1099-1100
[2011]; Matter of Toner v Michael Hanley Moving & Stor., 40 AD3d
1199, 1200 [2007], lv denied 9 NY3d 808 [2007]).
We are unpersuaded by claimant's contention that the April
15, 2013 Board decision directing an in-home IME is not supported
by substantial evidence. The carrier is statutorily entitled to
have claimant independently examined by a doctor (see Workers'
Compensation Law § 13-a [4] [b]). Here, the record establishes
that, despite numerous attempts to schedule an IME over the
years, there has been no agreement with regard to the
transportation or conditions under which the examination could
proceed. The voluminous and evolving protocols, accommodations
and restrictions imposed by claimant and her doctor to prevent
exacerbation of claimant's condition clearly present
extraordinary difficulties, if not an impossibility, in
scheduling and implementing an IME. The record further
establishes that claimant is provided with personnel who follow
certain protocols set forth by claimant and her doctor in order
to tend to claimant in her home without further impairment of
claimant's condition. As such, we find that the Board's decision
to order, under these extremely extraordinary circumstances, an
in-home IME by a consultant who must adhere to the same protocols
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and restrictions as the personnel who tend to claimant on a
regular basis is supported by substantial evidence and will not
be disturbed. Although claimant asserts that the Board
mischaracterized or misapprehended certain factors, we do not
find that the substantial evidence supporting the Board's
decision is undermined by any alleged inaccuracies.
Turning to the Board's August 22, 2014 decision, we note
that "refusal by the claimant to submit to [an IME] at such time
or times as may reasonably be necessary in the opinion of the
[B]oard, shall bar the claimant from recovering compensation for
any period during which he or she has refused to submit to such
examination" (Workers' Compensation Law § 13-a [4] [b]). Whether
suspending compensation payments on account of a claimant's
attempt to frustrate a carrier's right to engage in an IME is a
question of fact for the Board to resolve (see Matter of Jasmine
v Rainbow Grill, 115 AD2d 862, 863 [1985]). Here, there are
opposing views as to why claimant did not submit to an IME. It
was within the Board's purview to credit the carrier's assertion
that it has engaged in extraordinary efforts to schedule the IME
in accordance with the WCLJ's May 9, 2012 directive – which
subsequently was affirmed by the Board's April 15, 2013 decision
– and that such efforts were thwarted by claimant's perpetual
requests and demands of rescheduling and relocating the IME (see
Matter of Jasmine v Rainbow Grill, 115 AD2d at 863). As such, we
find that substantial evidence supports the Board's finding that
claimant frustrated the carrier's right to engage an independent
consultant by unreasonably refusing to attend an IME so as to
warrant suspension of her benefits (see Workers' Compensation Law
§ 13-a [4] [b]; see also Matter of Jasmine v Rainbow Grill, 115
AD2d at 863). We have reviewed claimant's remaining contentions
and find them to be without merit.
Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur.
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ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court