Defending Waiver of Defenses in New York

New York has Strict Timelines for Perfecting a Denial.

New York’s Workers’ Compensation Law imposes a harsh penalty for employers/carriers who file “late” denial paperwork: all legal defenses are waived. This includes “jurisdictional defenses, such as those based on “lack of notice,” “not my employee,” “no coverage,” and the “Statute of Limitations” (untimely filing). Defending employers who face the preclusion of legal defense still have options as a recent Appellate Decision illustrates (Bellantoni, decided last week).

This article discusses the “do’s” and “don’ts” of handling legal preclusion cases in New York.

The Statutory requirements.

As per Workers’ Compensation Law Section 25-2(a), a denial must be filed “on or before the eighteenth day after disability or within ten days after it has knowledge of the accident, whichever period is greater.” However, there are situations, such as “occupational” claims in which the alleged symptoms arise long after the termination of employment, where the employer/carrier’s first notice is the formal indexing of a case against the employer.

Where the formal indexing of the case is the “first notice” to the employer/carrier of the alleged injuries, under §25-2(b), a denial may be filed “within 25 days from the date of mailing of a notice that the case has been indexed.” The relevant section states:

(b) In the event the board shall notify an employer or his insurance carrier that a workers’ compensation case has been indexed against such employer, and the employer or insurance carrier decides to controvert the right to compensation, a notice of controversy shall be filed with the chair within twenty-five days from the date of mailing of a notice that the case has been indexed. Failure to file the notice of controversy within the prescribed twenty-five day time limit shall bar the employer and its insurance carrier from pleading that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment. However, the board, in the interest of justice, shall, upon the showing of good cause therefor, permit the filing or the amendment of a notice of controversy to raise an issue not theretofore raised because of mistake, inadvertence, omission, irregularity, defect or surprise, or based upon newly discovered evidence.

If the denial is not filed (by filing FROI-04 or SROI-04) within the 25 days then all defenses (substantive or legal) are barred.

The Regulations.

When a denial is made, the FROI-04 must be printed out and mailed to the claimant and her attorney within one business day (12 NYCRR 300.22[2][b][1][ii]). The defense attorney should prepare and file a Form OC-400.5 certifying the controversy.
Ten days before the Pre-Hearing Conference, both parties must file a Pre-hearing Conference Statement. 12 NYCRR 300.38(f)(1). If the employer/carrier fails to file the pre-hearing Conference statement on time (10 days prior to the Conference) the Regulations state:

Failure by the insurance carrier to timely serve upon all other parties and file with the Board the pre-hearing conference statement, or the filing by the insurance carrier of a materially incomplete statement shall result in a waiver of defenses to the claim.

See 12 NYCRR 300.38(f)(4). Note the lack of discretion allowed to a presiding judge: if the employer/carrier fails to file the PH-16.2 (Pre-hearing Conference Statement) then all legal defenses are waived.

What to do when defenses are precluded.

Every denied case in which the claimant has presented medical evidence of injury/treatment will be listed for a Pre-hearing Conference. Where the Law Judge determines at the Pre-hearing Conference that the Pre-Hearing Conference Statement (PH-16.2) was filed late (or not at all), the Law Judge must still make the following findings:

  • a “sufficiently developed” record must be made,
  • submission of claimant’s medical records, and
  • other documents to provide substantial evidence supporting the establishment of the workers’ compensation claim, and
  • “other documents” which support the claimed date of disablement.

See Matter of Bellantoni v City of New York School Food & Nutrition Servs., 2015 NY Slip Op 03002 (3d Dep’t, App. Div. Decided April 9, 2015), quoting Quagliata v Starbucks Coffee, 82 AD3d 1321, 1322 (2011), lv denied 17 NY3d 703 (2011).

In Bellantoni, decided last week, the employer/carrier argued that the claimant failed to provide notice of the alleged injury during the time allowed by law (a jurisdictional defense). The Law Judge found that the carrier filed the denial timely (within 25 days of Notice of Indexing) but then failed to file the Pre-hearing Conference Statement (PH-16.2) within the time allowed by the regulation (ten days before the Pre-Hearing Conference). The defense of “notice” was therefore precluded. The carrier/employer immediately appealed the decision to the Board Panel, where it lost. The carrier/employer appealed again, to the Appellate Court. The Appellate Division ruled that the appeal was premature, as the employer/carrier should have defended the case by forcing the clamant to her proofs on the prima facie case, and then appealing if the Law Judge ruled that the claimant’s case had not been perfected.

The take-away is that even when legal defenses are precluded for timely filing a Pre-Hearing Conference Statement, the defense should defend the case at the Pre-Hearing Conference and any resulting expedited proceeding on the “Quagliata” factors (see above, Quagliata v Starbucks Coffee). This means that counsel should question and challenge each and every document, every medical record, and allegation of causal relationship and preserve objections/exceptions where appropriate. Then, if the Law Judge finds a prima facie case has been established, appeal may be taken. Employers/carriers should be warned that absent a showing of mistake or a showing of affidavit demonstrating due diligence and good cause for the failure to file the Pre-hearing Conference Statement (as per 12 NYCRR 300.38[f][1]) the Board Panel/Appellate Courts are unlikely to reverse defense preclusion.

For more on litigating denied cases and other related topics in workers’ compensation, subscribe to my monthly newsletter:

Greg Lois is the managing partner of LOIS LLC, a 21-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com