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Avoid a Waiver of Defenses in New York – Practical Advice for Claim Denials.

An insurance carrier can contest the validity of a workers’ compensation claim for a variety of reasons, including that the injury was not related to work, or the employee is not injured to the extent that she is claiming. An employer can also request that the insurance carrier contest the claim. However, because the insurance carrier is responsible for the claim, it is not required to comply with the employer’s request to either accept to deny.

A case may be disputed because:

  • The employer alleges that proper notice was not timely given; or
  • The claim was not properly filed; or
  • A lack of causal connection is alleged between the alleged injury and the accident; or
  • The employer-employee relationship is denied; or
  • The accident is alleged not to have occurred at work; or
  • Any other reason for denying the claim.

How is a Claim Controverted?

File an electronic denial “First Report of Injury – Denial Type 04” (FROI-04) which replaces the Form C-7 “Notice that Right to Compensation is Controverted.” The denial filing (FROI-04) provides a description of the legal and factual defenses raised. Once the FROI-04 and a medical record is filed, the case will be set down for an expedited hearing within 30 days.

The expedited hearing is scheduled to give a Judge the opportunity to hear both sides of a disputed issue. 10 days before the expedited hearing, a Pre-hearing Conference Statement (Form PH-16.2) must be filed.3 If the Pre-Hearing Conference Statement is not filed on time, all defenses are waived.

The Board may hold a hearing or hearings before a WCL Judge. The Judge may take testimony, order depositions, review medical and other evidence and will decide whether the claimant is entitled to benefits. If the claim is determined to be compensable, the Judge determines the amount and duration of the compensation award.
We counsel our clients that if you are denying a case, file a Pre-Hearing Conference Statement at the same time – to avoid the potential for failing to file the Statement (Form PH-16.2) within the 10 days. There is just too much that can go wrong – late notice of the hearing date, no notice at all, etc! If you have enough information to justify a denial, you have enough information to fill out the Pre-hearing Conference Statement – so go ahead and file the PH-16.2 at the same time.

Because the denial form (FROI-04) must be filed electronically, only the carrier/employer can file this initial pleading, then refer the claim to outside counsel. This introduces delay and a possible dropped deadline into a time-sensitive process.

There is no prohibition on amending a Pre-Hearing Conference Statement prior to the Pre-hearing Conference. As more information or potential exhibits are obtained through the limited discovery process (such as use of expedited subpoena power) the original conference statement filing can be supplemented.

Waiver of Defenses for Late Pre-Hearing Conference Statement.

The Appellate court has consistently upheld the waiver of defenses where the employer raised jurisdictional defenses in a timely C-7 but then failed to file a Pre-Hearing Conference Statement on time (ten days prior to the scheduled pre-Hearing Conference). In Smith v Albany County Sheriff’s Dep’t, the Appellate Division ruled that because the the carrier submitted an untimely prehearing conference statement the employer waived all defenses to the claim and, upon review of claimant’s medical records, established an occupational injury. See Smith v. Albany County Sheriff’s Dep’t, NY Slip Op 01559 (App. Div. 3d Dep’t., Decided March 3, 2011). In a similar case decided the same day, the Appellate Panel ruled that stripping the carrier of its defenses for failing to file the Pre Hearing Conference Statement on time was “not unreasonable, arbitrary, capricious or contrary to the statute under which it [is] promulgated.” See Quagliata v Starbucks Coffee, NY Slip Op 01553 (App. Div. 3d Dep’t., Decided March 3, 2011).

Filing a Late Pre-Hearing Conference Statement.

In a case decided September 29, 2011, the Appellate Division reviewed a situation where the employer denied the case (filed a C-7) but failed to file the PH-16.2 within the time limits. See Butler v. General Motors, NY Slip Op 06634 (App. Div. 3d Dep’t, Decided September 29, 2011). To fix the mistake, counsel immediately filed an “amended notice of controversy” and argued that the originally-scheduled Pre-hearing Conference was therefore “premature” and should have been rescheduled, thereby making the PH-16.2 timely.

The Workers’ Compensation Law Judge refused to excuse the late fling, and stripped the employer of its defenses, ultimately establishing the claim. In a decision dated September 29, 2011, the Appellate Division affirmed this outcome.

Best practice for preserving defenses.

Be wary of the requirement that the Pre-Hearing Conference Statement be filed ten days prior to the expedited hearing – implement a plan to make sure this is done timely or risk a suppression of defenses!

Attending Hearings.

An employer has the right to attend any hearings related to a claim filed by one of the employer’s workers.

Review Case Records.

An employer has the right to electronically access the Board’s case file for a claim filed by the employer’s worker by visiting one of the Board’s customer service centers. The Board’s Electronic Case Folder (ECF) allows parties of interest to view the documents in the claim file electronically. Employers should go to one of the 11 district offices or 30 Customer Service Centers with identification to obtain a password. Based on the confidentiality of workers’ compensation records be prepared to offer proof that you are the employer of record in the claim.

Aggressively Present All Defenses.

A self-insured employer, or an employer who lacks workers’ compensation coverage, has the right to participate in the hearing and present relevant evidence about disputed issues at a hearing. Employers may request that a hearing be scheduled on a particular issue by writing to the Board in a timely manner. Corporations must be represented by counsel in proceedings before the Board. Certain defenses will be waived if they are not timely raised or if the employer or carrier does not timely file a “First Report of Injury – Denial 04” (FROI-04).

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We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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