Duane Carlow v. Fulghum Fibres

Insurance Company


Date Decided

September 21, 2022

Panel Members

Elizabeth Elwin

David Hirtle

Katherine Gatti Rooks




File Size

101 KB


Summary from the Troubh Heisler Attorneys

The Appellate Division has held that an ALJ did not abuse his discretion by admitting into evidence a letter from the treating surgeon that was not served within 14 days of the scheduled hearing. In Carlow v. Fulgham Fibres, Dec. No. 22-29, the employee filed a petition for award alleging both acute and gradual injury while shoveling on November 16, 2017. Mr. Carlow had pre-existing right shoulder arthritis and tendonitis for which he was receiving treatment at the time of injury. Following a January 24, 2020 hearing, the ALJ left the evidence open to receive medical records, fringe benefit information and other exhibits. On March 4, 2020, before the evidence had closed, the ALJ received a letter from Mr. Carlow’s counsel providing a February 24, 2020 letter from the treating surgeon in which the surgeon opined that the November 2017 incident caused a work injury that significantly aggravated Mr. Carlow’s underlying right shoulder condition and accelerated the need for surgery. She also opined that the left shoulder was injured due to overcompensating for the right shoulder injury.

At a March 13, 2020 conference Fulgham objected to the letter on grounds it was untimely pursuant to sec. 309(3) and Rule ch. 12, sec. 12(1). The ALJ provided Fulgham 14 days to suggest how it might respond to the letter, such as a deposition of the doctor, a medical exam under sec. 207, sec. 312 or other testimony. At Fulgham’s request the ALJ provided an additional 7 days to indicate how it would respond. Fulgham decided not to develop any evidence or request a hearing for additional testimony. Based on this letter, the ALJ granted the petition.

Fulgham appealed, arguing the ALJ violated Sec. 309(3) and Rule ch, 12, sec. 12(1) in admitting the letter. Sec. 309(3) provides that medical reports are admissible in hearings “only if notice of the testimony to be used is given and service of a copy of the letter or report is made on the opposing counsel 14 days before the scheduled hearing.” Rule ch. 12, sec. 12(1) provides “Absent agreement of the parties the [ALJ] may exclude an exhibit offered at hearing that was not exchanged by the parties at least 7 days before the final hearing in the matter.”

The Appellate Division affirmed. It concluded that the ALJ’s order allowing 14 days for Fulgham to suggest how it might respond contemplated the possibility of further hearing and effectively extended the 14 day period under sec. 309(3). The board rules provide ALJs with broad discretion in matters concerning the sequence and manner of hearing and admission of evidence. Recognizing that Rule ch. 12, sec. 12(1) permitted but did not require the exclusion of exhibits, the panel held that the ALJ did not abuse his discretion in admitting the letter into evidence.

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