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Glossary of WCB Terms
New York State
Workers' Compensation Board
OFFICE OF THE CHAIR
328 State Street  Schenectady, New York 12305
Governor Andrew M. Cuomo


Subject No. 046-547

Revised Form OC-400.5, Attorney/Representative's
Certification of Form C-3 or Notice of Controversy

Date: May 31, 2013

On April 16, 2013, the New York State Workers' Compensation Board (Board) announced 'New Printable eClaims Transaction Reports Available for Mailing to Parties' in furtherance of the Board's rollout of eClaims in spring 2013. The Board has developed new printable transaction reports to allow claim administrators to notify parties by mail, as required by law. FROI-04 and SROI-04 denial transactions will replace Form C-7, Notice of Controversy. This notice must be filed with the Chair, by the carrier or employer, on or before the 18th day after disability or within 10 days after the employer first had knowledge of the alleged injury, whichever period is greater. In the event that the Board sends a notice of indexing, the employer or carrier must file a controversy within 25 days, or risk a waiver of pleading certain defenses to the claim. FROI-04 and SROI-04 denial transactions do not enable electronic certification. Therefore, the Board will permit a FROI/SROI Notice of Controversy to be certified at the pre-hearing conference using revised Form OC-400.5, Attorney/Representative's Certification of Form C-3 or Notice of Controversy. The OC-400.5 revisions enable FROI/SROI denial certifications at the pre-hearing conference. A pending regulatory change to Rule 300.38 will incorporate this procedure for eClaims cases. Individual carriers and employers should follow the current procedure of paper certification, as set forth in the current Rule 300.38, until going live with eClaims. The form will also continue to serve as the method for the claimant's legal representative to certify a previously filed Form C-3.

For claimant legal representatives:

Board Rule 12 NYCRR §300.37 provides, in part:

(d) (1) If the claimant has retained a legal representative at the time the Employee Claim form is filed with the Board, the legal representative shall file with the Employee Claim form:

  1. a written certification, signed by the legal representative, that to the best of the legal representative's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual matters asserted on the Employee Claim form have evidentiary support or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
  2. a list of all documents in the possession, custody, or control of the claimant that may be used to support the claim.

Board Rule 12 NYCRR §300.38 provides, in part:

(d) Subsequent retention of legal representative. If a claimant retains a legal representative after a claim is indexed or after the carrier files a form to controvert the claim when the claim is not indexed, the legal representative shall, within five days thereof, file with the Board and serve on all other parties a notice of retainer on the form prescribed by the Chair together with:

  1. An Employee Claim form, if not previously filed, or the legal representative's certification of a previously filed Employee Claim form or, if the previously filed form is incomplete, incorrect, or in need of supplementation, an amended Employee Claim form and certification thereof; and
  2. The list of documents required to accompany the Employee Claim form of a claimant who has retained a legal representative as required in §300.37(d)(1); and if the claimant has retained a legal representative prior to the pre-hearing conference, a pre-hearing conference statement pursuant to subsection (f) of this section. Certification shall have the same meaning as in §300.37(d)(1)(i).

For carrier legal representatives:

Amended Board Rule 12 NYCRR §300.38 provides, in part:

(a) Notice of controversy:

An insurance carrier who controverts a claim shall file with the Board and serve upon all other parties a notice of controversy on the form prescribed by the Chair in accordance with Workers' Compensation Law section 25(2)(a) or (b) or section 300.22(d)(3) of this Part. The notice of controversy shall comply with the following:

  1. It must be complete and provide a factual basis for the insurance carrier's controverting the claim and for any asserted defenses;
  2. It must contain a written certification signed by the insurance carrier, or if represented, by its legal representative, that to the best of his or her knowledge, information and belief, formed after an inquiry reasonable under the circumstances that the allegations and other factual matters asserted in controverting the claim or the defenses asserted have evidentiary support, or if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. The written certification may be made at the pre-hearing conference prescribed in subdivision (g) and (h) herein. If the initial certification is not signed by a legal representative, then before a legal representative may appear on behalf of the insurance carrier, the legal representative shall file and serve the required certification;
  3. It must provide the name and, if known, the address and telephone number of each individual likely to have information that the insurance carrier may use to support its factual basis for controverting the claim or for supporting a defense, and briefly describe the information; and
  4. It must provide a list of all documents in the possession, custody or control of the insurance carrier that it may use to support the factual basis for controverting the claim or for supporting a defense.

As the Board publishes more information, it will be posted on the eClaims Overview portion of the Board's website.

For more information on the IAIABC Claims EDI Release 3.0 standard, please visit the EDI Implementation Guide section of the IAIABC website at: www.iaiabc.org. Questions related to this announcement can be directed to: eClaims@wcb.ny.gov. New York specific requirements, implementation schedule, and resources can be found at the Board's website: www.wcb.ny.gov.

 

Robert E. Beloten
Chair