Because ALL controverted (denied) cases (with exceptions for death claims, occupational, and “complex” cases) are automatically assigned to the expedited hearing part, we will explore the rules surrounding these trials. These “hurry up” trials require tight coordination between defense counsel and employer to prepare and present all viable defenses.
We continue to recommend that all denied cases are discussed with counsel before a denial is issued; we also recommend that counsel file the Pre-hearing Conference Statement.
The Pre-Hearing Conference.
Upon a Notice of Controversy being filed (FROI-04 or SROI-04) the case will be scheduled for a Pre-Hearing Conference but only where the claimant has filed supporting medical. A Form PH-16.2 “Pre-Hearing Conference Statement” must be filed 10 days prior to the Pre-Hearing Conference. Failure to file this form timely may result in defenses being waived!
At the pre-hearing conference, the defense’s attorney must be prepared with the following:
- an offer of proof for every affirmative defense raised;
- statutory and case citations for all legal defenses;
- a list of medical witnesses that the employer wishes to cross-examine;
- any additional parties to add to the litigation;
- a plan for any additional discovery necessary.
The Law Judge can order cross-examination of the claimant’s treating physician by either deposition or live testimony at a scheduled hearing. Defense counsel should have a plan for requesting whichever mode of cross-examination bests serves the needs of the employer (note that if the medical witness fails to appear at the scheduled hearing, the Judge will authorize a subpoena and give the doctor a “second chance” to appear).
At any pre-hearing conference, the case may be settled under Section 32. Ten (10) days before the pre-hearing conference, claimant’s attorney must file forms C-3 and make sure at least one C-4 (medical record) – failure to do so can result in the case being thrown out by the Law Judge. The case can then be re-opened if claimant’s attorney files the appropriate forms. Failure by the claimant to proceed (or appear) will result in the case being closed.
If the claimant is represented, a Form PH-16.2 (“Pre-Hearing Conference Statement”) must be filed 10 days before the hearing, or claimant’s counsel is not entitled to a fee.
The pre-hearing conference may result in the Judge issuing Orders or directions to the parties. These orders or directions are not appealable (under WCL § 23) until the controverted issues in dispute are resolved.
If everything has been presented and prepared correctly, the Judge will then set the matter down for an Expedited Hearing. Although this sounds “singular” (i.e., one hearing) it actually includes out-of-court proceedings (usually medical witness depositions). Similarly, there is nothing that prevents the parties from scheduling necessary depositions or testimony in the absence of specific judicial direction to do so.
In cases where medical proofs are going to be required, and the claimant has already produced medical records which will likely be considered prime facie medical evidence, defense counsel may immediately proceed to scheduling necessary medical testimony (by way of subpoenaed deposition) and collecting relevant medical records (through the use of executed C-3.3 “Limited Release” procedures on an expedited basis). These activities may be necessary where the ability of the defense to get organized and present a meaningful defense would be severely limited by the scheduling requirements of the expedited hearing process, which requires a hearing on the lay proofs (with testimony completed) within 30 days of the Pre-Hearing Conference, an IME for the employer completed and served within 27 days of the Pre-hearing Conference, and all medical proofs concluded (including deposition testimony of the claimant’s treating physicians and the IME doctor) within 60 days of the Pre-hearing Conference.
Because the specific timelines differ slightly depending on whether or not medical proofs will be needed and whether or not the claimant is represented, we will discuss these three separate scenarios, below.
The Expedited Hearing process for represented claimants.
The Regulations (12 N.Y.C.R.R. 300.38) require that any IME report must be filed and served pursuant to WCL § 137 no later than 3 days from the date of the initial expedited hearing. In practice, this will be extremely difficult to do if the IME has not already been scheduled by the time of the Pre-hearing Conference, as the minimum time (unless the claimant waives notice) that must elapse before the IME is ten days, and scheduling any such IME on short notice is difficult. We recommend that if medical testimony on behalf of the employer is going to be necessary to controvert a claim, an IME be scheduled at the time of denial (concurrent with filing the PH-16.2).
Hearing process where medical testimony must be taken.
Medical testimony will usually be obtained by deposition. All depositions must be completed and transcripts submitted to the Board within 85 days of the filing of the FROI-04 electronic denial. Defense can object to any establishing questions (direct testimony) directed to the treating physician, as their reports are deemed to be in evidence as a direct examination.
Hearing process where medical testimony will not be taken.
The following is the hearing process where the defense is purely legal or factual.
Hearing process for unrepresented claimants.
In the case of an unrepresented claimant, the rules allow for all testimony to take place at a single hearing, including medical witnesses to appear, within 60 days of the Pre-hearing Conference. In practice, a judge of compensation will usually encourage an unrepresented claimant to obtain counsel, and the matter will not be set down for an expedited hearing until counsel is chosen.
Impossibility of getting an adjournment.
Adjournments of a Pre-hearing Conference, Expedited Hearing, or deposition of a medical witness in a controverted case will only be granted for “an emergency.” An “emergency” is defined by the rules as “ a serious event” that includes a death in the family, a serious illness, significant prior professional or business commitment, and inclement weather that prevents travel. It does not include any even that could be mitigated “by the timely taking of reasonable action.”
Defense counsel that makes a frivolous request for adjournment can be fined $1,000 (personally). Claimant’s attorneys who request a frivolous adjournment can be fined $500. Unrepresented claimants are not subject to any penalty.