Wegman’s Has Right to Question Injured Worker’s Doctor, Rules New York’s High Court

By Andrew G. Simpson | December 22, 2023

Wegman’s Food Markets was wrongly denied an opportunity to cross-examine an injured employee’s doctor, the New York Court of Appeals has ruled, overturning rulings by a workers’ compensation law judge, the New York State Workers’ Compensation Board and a lower court.

The right of an employer to cross-examine a physician before the workers’ compensation judge has rendered a decision on the merits of a case is mandatory, the high court ruled. Neither the workers’ compensation law judge nor the board has discretion on whether to allow for the cross-examination.

The rule at issue provides that, if “the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose.”

The high court noted that the “mandatory nature of this language” contrasts with the language used in the board’s other rules governing adjournment of hearings, which afford referees discretion and create exceptions to otherwise mandatory rules.

Under the plain language of the cross-examination rule, Wegman’s properly exercised its rights by making its request at a hearing on the claim prior to the workers’ compensation judge’s ruling on the merits, the court concluded.

Employee Thomas Lazalee filed a claim for benefits in 2018 while out of work with a right thumb injury and carpal tunnel syndrome, for which he underwent surgery. His employer, Wegman’s, did not controvert any aspect of the claim and paid claimant at the temporary total disability rate. The Board later awarded Lazalee 36.4 weeks’ compensation for an established right thumb injury.

After he returned to work in 2019, his physician diagnosed him with similar injuries to his left hand. Lazalee filed for benefits and, again, Wegman’s paid him at the temporary total disability rate.

When he returned to work from the left-hand injuries in January 2020, Lazalee requested a hearing to amend the prior award to have it include his additional injuries.

Wegman’s accepted liability at an April 2020 hearing but sought to cross-examine the physician as to the degree of impairment during Lazalee’s most recent period out of work.

A workers’ compensation judge denied the request on the ground that Lazalee’s 11.2-week absence was not “excessive” and awarded him compensation over that period at the temporary total disability rate.

The workers’ compensation board affirmed, finding the request to cross-examine Lavalee’s physician was untimely because it was made after the employer paid Lazaleet the total disability rate until his return to work, waited three months after that to raise the issue and seek to “retroactively argue that the claimant was not totally disabled,” and made that argument based only on counsel’s interpretation of the reports “without any contrary credible medical evidence.”

Wegman’s appealed and the Appellate Division, Third Division affirmed. The court held there was no basis to disturb the board’s conclusion and that claimant’s “belated” request to cross examine the physician was ” ‘disingenuous’ ” because claimant “required the use of his hands to perform his job” and the physician’s “uncontroverted medical reports” supported the finding of total temporary disability.

But none of those reasons for denying Wegman’s request applied to the right to cross-examine a physician. On December 12, the Court of Appeals found that, as the rule sets forth, the employer’s request was appropriately made to the workers’ compensation judge at a hearing prior to any ruling on the merits. At that point, there is just one course of action, “Upon such a request, the workers’ compensation judge must adjourn the hearing and afford the employer the opportunity to produce the claimant’s physician for cross-examination,” the opinion concludes.

The court remitted the matter to the Appellate Division, Third Department, with directions to remand to the New York State Workers’ Compensation Board for further proceedings.

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