LOIS Associate Elias M. Aydin and Paralegal Shannon Fitzsimmons obtained a major victory on appeal in a New York Workers’ Compensation claim, securing a finding that the Carrier did not waive its defenses, had properly invoked provisions of WCL Section 21-a, and did not violate WCL Section 25(2)(b). The Carrier controverted the claim upon discovery that no accident arose in an out of the scope of employment. At initial hearing, the Claimant raised WCL Section 25(2)(b), arguing that the Carrier failed to timely file a PH-16.2 by 10 days prior to the hearing. Although the Carrier initially filed a FROI accepting liability, Aydin argued pursuant to WCL Section 21-a, the Carrier filed an initial SROI-IP as well as every SROI thereafter without liability, and therefore timely filed its denial pleadings within the one-year allowance.
Aydin further argued that the provisions of WCL Section 25(2)(b) are in applicable, since a Notice of Indexing was never issued and there was no indication that the hearing was deemed as a Pre-Hearing Conference. However, the Law Judge found the Carrier had waived its defenses for failure to file a Notice of Controversy within 25 days of the Notice of Indexing, and for failure to timely file a Pre-Hearing Conference Statement. Aydin noted an exception to the ruling and raised WCL Section 114-a on the basis that no accident arose in and out of the course and scope of employment. However, the Law Judge rejected Aydin’s argument, ruling that the Carrier is barred from raising WCL Section 114-a on the grounds of no accident, since the provisions of WCL Section 25(2)(b) apply.
Aydin appealed the decision with the assist of LOIS Paralegal Shannon Fitzsimmons in drafting a persuasive appeal brief to successfully secure a reversal. The Memorandum of Board Panel Decision, filed March 26, 2025, ultimately agreed with Aydin’s arguments on appeal. The Board Panel found that the Carrier did not waive any of its defenses and properly invoked WCL Section 21-a within the one-year allowance before beginning temporary benefits and timely asserted its defenses. The Board Panel further ruled in the Carrier’s favor, finding that the provisions of WCL Section 25(2)(b) are inapplicable, as the August 1, 2024, hearing was not scheduled as a Pre-Hearing Conference, and as such the Carrier was not obligated to file a Pre-Hearing Conference Statement in order to deny the claim. In light of the foregoing, no defenses were waived, and the Carrier can contest the merits of the claim.
