Carrier Must Timely Seek Extensions for Cross-Examination Depositions; Preclusion Improper Where Subpoenas Were Issued Knowing Nonappearance and No Extension Was Requested

1. Introduction

Matter of Pressimone v New York City Hous. Auth. (Appellate Division, Third Department) addresses when a Workers’ Compensation Law Judge (WCLJ) and the Workers’ Compensation Board (Board) may preclude a claimant’s medical evidence after a physician’s deposition occurs after a Board-imposed deadline.

The claimant, Anthony Pressimone, sustained compensable injuries in 2020, including a left shoulder injury, after falling from a ladder. The dispute became one of permanency: claimant’s orthopedic surgeon, Jeffrey Guttman, opined the claimant had reached maximum medical improvement and had a 45% schedule loss of use (SLU) of the left arm; the self-insured employer’s consultant opined a 20% SLU.

The key procedural issue was whether Guttman’s report and testimony could be precluded based on failure to appear on earlier subpoena dates—despite the carrier’s knowledge, at the time subpoenas were issued, that the physician was unavailable and despite the carrier’s failure to request an extension from the Board for the transcript-filing deadline.

A secondary issue concerned the Board’s rescission of an attorney’s fee award due to an untimely fee application and resulting prejudice to the employer after the award had already been paid to the claimant.

2. Summary of the Opinion

The Third Department modified the Board’s decision by reversing the preclusion of the claimant’s physician’s medical opinion and remitted for further proceedings. The court held that, on these facts, it was error to preclude Guttman’s report/testimony based on nonappearance at the initially subpoenaed September deposition dates.

The court otherwise affirmed the Board’s determination rescinding the counsel fee award because claimant’s counsel did not file the fee application by the Board-ordered deadline, and the employer would be prejudiced because it had already paid the full award to the claimant with no additional funds available for a lien.

3. Analysis

3.1 Precedents Cited

Employer: Raymond Desamours (2016 WL 7494019, 2016 NY Wrk Comp Lexis 13667 [WCB No. G100 7356, Dec. 22, 2016])

The court relied on the Board’s own articulated rule that the party seeking cross-examination (typically the carrier) bears responsibility to request an extension of time to cross-examine the claimant’s doctor and must do so in accordance with directions issued by the WCLJ. This principle mattered because the record showed:

  • The carrier repeatedly stated it would request an extension,
  • but the carrier never actually made the extension request contemplated by the Board’s June 30, 2022 directive.

The case thus reinforced that deposition-timing consequences should not be shifted to the claimant where the carrier’s own procedural obligations were not met.

Employer: Concern Home Care Inc. (2021 WL 5034528, 2021 NY Wrk Comp LEXIS 6756 [WCB No. G258 5001, Oct. 26, 2021])

The Third Department cited this decision for the proposition that subpoenas may be given “no weight” in assessing preclusion where the surrounding circumstances undermine their fairness or procedural integrity. Here, the record supported the inference that:

  • All three subpoenas (two in September and one for October 31) were witnessed the same day (August 25, 2022),
  • the carrier knew at the time it issued the September subpoenas that the doctor was unavailable in September,
  • and the carrier had already confirmed an October 31 deposition date beyond the Board’s transcript deadline.

That alignment of facts led the court to treat the September subpoenas as effectively non-probative “gotcha” process and to reject them as a basis for the harsh remedy of preclusion.

3.2 Legal Reasoning

(a) The governing regulatory framework: 12 NYCRR 300.10 (c)

The court grounded its analysis in 12 NYCRR 300.10 (c), which sets out a structured mechanism for cross-examining the attending physician whose report is on file. Key features include:

  • If the carrier seeks cross-examination, the referee grants an adjournment for that purpose.
  • If the physician is not produced at the adjourned hearing, a further adjournment requires a sufficient excuse and is conditioned on use of a subpoena.
  • If the physician still does not appear after subpoena and adjournment, absent extraordinary circumstances the referee proceeds on the existing record.
  • The obligation to invoke court action to enforce the subpoena rests with the employer/carrier.

The regulation reflects a policy choice: cross-examination is available, but the party demanding it must shoulder the procedural burdens needed to make it happen.

(b) Why preclusion was error on these facts

The decisive factual findings were not merely that the deposition occurred after the Board-imposed deadline, but that the carrier:

  • knew in advance the physician would not appear on the September subpoena dates,
  • nevertheless issued subpoenas for those dates,
  • confirmed an October 31 deposition that was necessarily beyond the Board’s September 28 transcript deadline, and
  • did not request an extension in the manner contemplated by the Board’s June 30, 2022 proposed conciliation decision.

Against that backdrop, the court held the September subpoenas “should be given no weight” and that it was error for the Board to preclude the claimant’s medical evidence based on nonappearance on dates when the carrier already knew the witness would not appear. In practical terms, the court rejected using preclusion as a remedy for a problem the carrier anticipated and could have cured procedurally (via a timely extension request), but did not.

(c) Counsel fees: deadline enforcement and prejudice

The court separately upheld the Board’s rescission of counsel fees. The Board’s June 30, 2022 decision required any fee application by September 28, 2022; claimant’s counsel did not file until December 7, 2022. The prejudice finding was central:

  • The WCLJ’s December 9, 2022 decision directed prompt payment of the award to avoid penalties.
  • The employer paid the award to the claimant.
  • After payment, there were “no additional monies” from which to take a fee lien, so the employer would be prejudiced by a late fee award.

This portion of the opinion signals that fee-application deadlines in Board directives are not aspirational; when late filing impairs the ability to structure payment/lien mechanics without unfairness, rescission is a permissible remedy.

3.3 Impact

(a) Limits on preclusion as a sanction in medical-deposition practice

The decision constrains the use of preclusion where the carrier’s own conduct shows it:

  • scheduled deposition dates it knew were impossible,
  • and failed to take required procedural steps (such as seeking extensions) to reconcile a deposition date with Board-imposed transcript deadlines.

Future litigants can cite Matter of Pressimone for the proposition that the Board should not impose the harsh consequence of preclusion based on subpoena noncompliance when the subpoenas themselves are undermined by the carrier’s knowledge and inaction.

(b) Incentives for timely extension requests and clean scheduling records

The opinion encourages carriers to create a clean record: promptly seek extensions when a deposition must occur beyond a Board deadline, and avoid issuing subpoenas for dates the carrier already knows are not feasible. It also gives claimants a meaningful appellate tool to challenge preclusion when the carrier’s procedural choices manufactured the default.

(c) Counsel fee practice before the Board

The affirmance on counsel fees underscores that late fee applications can fail not only because of lateness in the abstract, but because of concrete prejudice once benefits have been paid and the lien mechanism becomes impracticable.

4. Complex Concepts Simplified

  • Schedule Loss of Use (SLU): A percentage-based measure of permanent loss of function of a body part (here, the left arm) that translates into a statutory number of weeks of compensation.
  • Maximum Medical Improvement: The point at which further significant recovery is not expected, allowing permanency evaluation.
  • Preclusion (in this context): An evidentiary sanction that bars a medical report and/or testimony from being considered—often outcome-determinative in SLU disputes.
  • Board-imposed transcript deadline: A scheduling directive requiring depositions and transcripts to be completed/filed by a specified date; parties must request extensions if compliance becomes impossible.
  • Prejudice (fee context): Practical unfairness caused by late action—here, the employer’s inability to account for a fee lien after having already paid the award in full.

5. Conclusion

Matter of Pressimone v New York City Hous. Auth. establishes a practical rule of workers’ compensation procedure: where a carrier issues subpoenas for deposition dates knowing the physician is unavailable and then fails to request an extension to accommodate a confirmed deposition date beyond a Board deadline, those subpoenas may be given “no weight,” and preclusion of the claimant’s medical evidence is improper.

At the same time, the decision confirms disciplined enforcement of Board-directed deadlines for counsel fee applications when late filing causes prejudice after awards have been paid. Together, these holdings reinforce that the Board’s procedural rules are enforceable—but sanctions must align with responsibility for the procedural breakdown and the realities of fairness in payment administration.