New York: Right to Cross-Examine Employer’s Expert Not Predicated Upon Filing Competing Report

A New York appellate court held the state’s Workers’ Compensation Board abused its discretion in denying, as untimely, a claimant’s request to cross-examine the carrier’s medical consultant where that consultant examined the claimant, advised the claimant that he had sustained a 40 percent schedule loss of use of the right arm and, prior to a hearing on permanency, claimant failed to obtain and file a competing opinion on permanency [i.e., to file an appropriate form C-4.3]. The court noted that after counsel for claimant received the consultant's report, that counsel unsuccessfully sought to persuade the carrier to stipulate to a 50 percent schedule loss of use. The court also noted that claimant's counsel had candidly indicated that he did not produce a C-4.3 form from claimant’s treating physician because the counsel believed that the opinion of the carrier’s consultant so deviated from the applicable guidelines that counsel was “willing to take his chances” upon cross-examination of that physician. Claimant’s right to cross-examine the carrier’s consultant was not predicated upon the filing of a competing report, and counsel voiced his request for cross-examination of the consultant at the first permanency hearing scheduled in this matter.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Ferguson v Eallonardo Constr., Inc., 2019 N.Y. App. Div. LEXIS 5226 (June 27, 2019)

See generally Larson’s Workers’ Compensation Law, § 124.06.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law