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Workers’ Compensation Board

New York State
Workers' Compensation Board
328 State Street  Schenectady, New York 12305
Governor Andrew M. Cuomo

Subject No. 046-461

Modifications To Form Ph-16.2, Pre-Hearing Conference Statement

Date: February 25, 2011

The Workers' Compensation Board has modified Form PH-16.2, Pre-Hearing Conference Statement, to accommodate implementation of the recently adopted 2010 New York State Construction Industry Fair Play Act (Labor Law § 861). The Fair Play Act changes the definition of employee and independent contractor for purposes of those working in the construction industry. The modified Form PH-16.2 requires specific information in controverted claims when the carrier or employer is asserting that the injured worker was an independent contractor working in the construction industry. Form PH-16.2 is to be filed with the Board ten days prior to the Pre-Hearing Conference.

Under the Fair Play Act, any person working in construction is presumed to be the employee of the person or business for whom he or she is working. A business can overcome this presumption by showing that the worker meets either a three part test (the ABC test) or a twelve part separate entity test. See Subject Number 046-450 (December 24, 2010).

Form PH-16.2 contains a new multipart question (Question 2b) which asks whether the controverted claim is for an injury which occurred within the construction industry. In addition, Question 2b asks if the issue of "Employer-Employee" relationship is still being raised by the employer/carrier and requests that the employer/carrier include the alleged employer's Federal Tax ID number (FEIN). If there is a possible violation of the Fair Play Act, the Board will place the alleged employer on notice and hold a hearing to determine whether the claimant was an employee, and if so, whether the employer willfully misclassified the claimant. Willful misclassifications of employees in the construction industry may result in financial penalties and potential criminal sanctions.

The revised form (dated 2-11) is available on the Board's website under Forms. The current electronic version of Form PH-16.2 will continue to be available on-line and will be revised for use by early summer. Parties who file this form electronically should include their responses to the new multipart Question 2b, if applicable, within Question 2 (Carrier/Self Insured Employer Defenses).


Robert E. Beloten