Date: January 22, 2009
In Subject Number 046-254, dated October 3, 2008, the Board announced the implementation of a new process for case assembly and indexing. The goal of this new process was to provide carriers and self-insured employers with information as it is acquired by the Board so that they can properly investigate the claim and accept or controvert it without having to file a "protective" notice of controversy. A reduction of "protective" C-7's will enable the Board to focus on truly controverted claims and allow the parties to litigate those claims in a timely and efficient manner.
In consonance with the new process for case assembly and indexing, the Board, at its September 16, 2008 meeting, adopted new regulations governing the adjudication of controverted claims. The new regulations, specifically new section 300.38 entitled "Controverted Claims," outline the responsibilities of the parties and the timeframes by which they must complete those obligations. In like manner, the regulations announce what the consequences are for failure to meet any obligation, when the record will be closed, and when a final decision will be forthcoming.
Effective January 1, 2009, the Board will begin adjudicating controverted claims in the manner outlined in 12 NYCRR 300.38. The goal is to resolve those claims within 90 days from the filing of the notice of controversy. To do so, the Board will schedule the pre-hearing conference within 30 days from the filing of the notice of controversy, the initial hearing within 60 days from the notice of controversy, and will issue a decision within 90 days from the notice of controversy. These 30/60/90 day milestones will ensure that the parties have an opportunity to present their evidence on the issues involved and have a decision rendered in a timely manner.
All parties must be prepared to present their cases at the appointed times. Cases will move forward even if the parties do not arrive prepared, and adjournments are only granted in emergencies. New penalties are also in place for frivolous controversies and dilatory tactics.
With the exception of unusually complex occupational disease claims or cases involving unrepresented claimants or the Uninsured Employers' Fund which may take a little more time to complete the record, all controverted claims will adhere to the following calendar:
Day 1: C-7 and Medical Report Received
The process begins when the Board receives both a medical report and a Form C-7. Specific defenses and the basis for those defenses must be identified at filing.
Day 20: PH-16.2 Received
A Pre-hearing Conference Statement (Form PH-16.2) must be filed with the Board at least 10 days before the pre-hearing conference, which occurs 30 days after the Board receives the C-7 and medical report. This lists defenses, witnesses, discovery issues, independent medical examination and wage information, among other things.
Day 30: Pre-hearing Conference
A pre-hearing conference occurs within 30 days of receiving a medical report and a Form C-7. Issues will be identified, reviewed and possibly resolved. Future testimony and independent medical examinations are confirmed, if still necessary.
Day 57: IME Report Received
Any independent medical examination reports must be presented three days prior to the first expedited hearing, which occurs within 60 days. If the IME report is filed and served in the five days before the first expedited hearing, the carrier's legal representative must bring copies of the IME report and proof of service to the first expedited hearing for the WCL Judge and all other parties.
Day 60: First Expedited Hearing
The claimant and lay witnesses testify at the first expedited hearing. A decision may follow.
Day 85: Deposition
If medical testimony is given by depositions, they must be filed by Day 85.
Day 90: Second Expedited Hearing
Medical testimony occurs at the second expedited hearing. A decision follows, either at the hearing or within 5 days.
Zachary S. Weiss