N.Y. Comp. Codes R. & Regs. tit. 12 § 300.38

Current through Register Vol. 46, No. 45, November 2, 2024

Section 300.38 - Controverted claims

(a) Notice of controversy. An insurance carrier who controverts a claim shall submit to the board and serve upon all other parties a notice of controversy in the format prescribed by the chair in accordance with Workers' Compensation Law, section 25(2)(a) or (b) or section 300.22 of this Part. A notice that contains the relevant elements, as prescribed by the chair, of the first report of injury or subsequent report of injury as more fully set forth in section 300.22 of this Part, shall be transmitted to all other parties within one business day of the date it is filed electronically with the board. 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 subdivisions (g) and (h) of this section. 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.

(b) Notice of pre-hearing conference and other matters. Upon receipt of the notice of controversy and a medical report, the board shall send notice to the parties that shall include the following:

(1) the date of the pre-hearing conference, which shall not be later than 30 days from receipt of a notice of controversy and a medical report;

(2) an order directing the parties, except a claimant that has not retained a legal representative, to serve and file a pre-hearing conference statement no later than 10 days before the date of the pre-hearing conference; and

(3) notification that:

(i) any independent medical examination report as provided in section 300.2(d)(3) of this Part (hereinafter referred to as IME report) shall be filed with the board and served as required by Workers' Compensation Law, section 137(a)(1) at least three days before the date set for the initial expedited hearing; and

(ii) the failure to so file and serve an IME report shall be a waiver, as provided in paragraph (g)(8) of this section, of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME report on the threshold issue of causal relationship.

(c) Medical records.

(1) In accordance with the limited release, the parties may seek production of relevant medical records from medical professionals and hospitals that have treated the claimant for previous injury to the same body part or similar illness to the one listed on the employee claim form.

(2) Medical professionals authorized to practice before the board shall deliver a copy of duly requested records within 21 days of the request and within 10 business days if the requesting party offers to increase payment to $1.50 per page copied (an expedited request).

(3) In addition to any other penalties, a medical professional authorized to practice before the board who fails to produce requested documents within 21 days, or within 10 business days of an expedited request, shall be subject to administrative warning or suspension or revocation of his or her authorization to treat and/or conduct independent medical examinations of injured workers, as determined by the chair or his or her designee. The board shall notify all authorized medical professionals of their professional responsibility to comply timely with requests for medical records and the possible penalties for failure to do so.

(4) All medical records obtained by the parties shall be filed with the board so that all parties have access to them.

(d) Subsequent retention of legal representative. If a claimant retains a legal representative after a claim is indexed or after the carrier submits a notice of controversy 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 section 300.37(d)(1) of this Part; and if the claimant has retained a legal representative prior to the pre-hearing conference, a pre-hearing conference statement pursuant to subdivision (f) of this section. Certification shall have the same meaning as in section 300.37(d)(1)(i) of this Part.

(e) Claimant's retention of a legal representative within 10 days of the pre-hearing conference may constitute good cause for the insurance carrier to obtain an adjournment of that conference if the information and/or documentation provided by the legal representative in accordance with subdivision (d) of this section or any other information or documentation submitted to the board by the legal representative prior to or at the pre-hearing conference is material and new or different from the information and/or documentation submitted by the claimant. Such adjournment shall be within the discretion of the Workers' Compensation Law judge or conciliator as to whether such information is material and new or different from the information previously submitted on behalf of the claimant. Such adjournment shall only be for such time as is necessary to obtain any documents or other information that is relevant and responsive to such new and different documents and information provided by claimant's legal representative.

(f) Pre-Hearing conference statement.

(1) Ten days before the pre-hearing conference, the insurance carrier or its legal representative and legal representative of the claimant shall file with the board and serve on all other parties a pre-hearing conference statement. A claimant that has not retained a legal representative on or before the date for the pre-hearing conference shall not be required or asked to file the pre-hearing conference statement. The pre-hearing conference statement shall contain information to facilitate the just, speedy and efficient disposition of the claimant's right to workers' compensation benefits, including settlement. If a claimant retains a legal representative within 10 days of the pre-hearing conference, the legal representative shall complete and file a pre-hearing conference statement in accordance with this subdivision at or prior to the pre-hearing conference.

(2) The pre-hearing conference statement shall include:

(i) a brief summary of the claim;

(ii) the theory of the case with statutory and if appropriate, case citations;

(iii) with respect to the insurance carrier's statement, an offer of proof for each defense raised;

(iv) a list of lay witnesses, including claimant, the party will call to testify at the initial hearing, including the names, addresses, employers if known, and a summary of, and the estimated time needed for, the testimony;

(v) a list of medical witnesses, if known, that the party intends to cross-examine and whether the party wishes such cross-examination to be by deposition or, if the Workers' Compensation Law judge or conciliator permits, at a hearing;

(vi) the names of any additional necessary parties;

(vii) a statement that all forms necessary to resolve the controversy, including medical reports other than an independent medical examination report (hereinafter referred to as IME report), have been submitted or will be submitted before or at the pre-hearing conference;

(viii) a statement that all discovery has been completed or will be completed by the pre-hearing conference, or which shall detail what further discovery is necessary and why it will not be completed prior to the pre-hearing conference;

(ix) with respect to the insurance carrier, a statement of whether it alleges that the claimant has not presented prima facie medical evidence, and the basis for such challenge; and

(x) if applicable, a request by the carrier for a broader release for medical records than that set forth in section 300.37(b)(1)(iii) of this Part, accompanied by an affidavit by the insurance carrier, or if represented, by the insurance carrier's legal representative setting forth the relevance of the records that may be obtained through use of the broader release.

(3) Each party shall attach to the pre-hearing conference statement any and all reports, forms and documents that the party intends to use at the hearing(s), which the party has in its possession or could reasonably have obtained, insofar as they are not already a part of the electronic case file maintained by the board, including hospital records and forms detailing the employer's statement of wages and the claimant's work status.

(4) Failure by the insurance carrier to timely serve upon all other parties and file with the board the pre-hearing conference statement, or the filing by the insurance carrier of a materially incomplete statement shall result in a waiver of defenses to the claim; failure to list a witness on, or to include a copy of any document not in the electronic case file with the pre-hearing conference statement, which the insurance carrier had in its possession or could reasonably have obtained, shall constitute a waiver of the right to call such witness or introduce such document in the case. There shall be no waiver if the Workers' Compensation Law judge finds, based on the affidavit of the insurance carrier's legal representative (or if the insurance carrier does not have a legal representative, then by the insurance carrier), that the conduct at issue was due to good cause and the insurance carrier exercised good faith and due diligence.

(g) The pre-hearing conference for represented claimants.

(1) The pre-hearing conference shall be held within 30 days of the filing of a notice of controversy and a medical report referencing an injury, and shall proceed as described herein.

(2) At the pre-hearing conference, the Workers' Compensation Law judge or conciliator may take appropriate action with respect to the following:

(i) confirmation that all forms and notices necessary to resolve the controversy, including medical reports except IME reports, have been submitted to the board and served upon all other parties and a verification from the parties that all information thereon is accurate;

(ii) addition of any other necessary parties;

(iii) simplification and limitation of factual and legal issues;

(iv) stipulations by the parties;

(v) presentation of a list of proposed witnesses;

(vi) settlement or other disposition of the case;

(vii) confirmation that the parties have conferred in a good faith effort to settle or otherwise resolve the case; and

(viii) scheduling any hearings or submission of testimony by deposition as to the resolution of disputed threshold issues.

(3) If the insurance carrier alleges in the notice of controversy and/or pre-hearing conference statement that the claimant has not presented prima facie medical evidence, the Workers' Compensation Law judge or conciliator shall determine at the pre-hearing conference whether the medical report or reports presented constitute prima facie medical evidence.

(i) A finding that the medical report or reports constitute prima facie medical evidence is an evidentiary determination that the case may proceed and is interlocutory and is not reviewable by the board as provided in subdivision (i) of this section.

(ii) Upon a finding that the claimant's medical report does not constitute prima facie medical evidence, the case shall be marked as no further action. Claimant may thereafter submit additional information on an amended or other medical report, upon which submission the case shall be scheduled for another pre-hearing conference.

(4) The Workers' Compensation Law judge or conciliator shall find a waiver of any defense for which the offer of proof at the pre-hearing conference is insufficient.

(5) At the pre-hearing conference, the Workers' Compensation Law judge or conciliator shall:

(i) obtain the names and addresses of all health care providers who rendered treatment for a previous injury to the same body part or similar illness to the one claimed in the controverted workers' compensation claim and direct, if necessary, the claimant to sign the appropriate limited medical release;

(ii) if the insurance carrier requested a broader release for medical records than that set forth in section 300.37(b)(1)(iii) of this Part, hear arguments from all parties as to whether the request should or should not be granted, render a decision and if the decision is to grant the request, direct the claimant to sign the appropriate broader release; and

(iii) determine if there are any prior workers' compensation claims and direct, if necessary, the claimant to sign the prescribed authorization pursuant to Workers' Compensation Law, section 110-a.

(6) If the claimant has not filed the employee claim form prior to the pre-hearing conference, the claimant will be directed to complete and file such form at the pre-hearing conference. If the claimant is represented at the pre-hearing conference, the legal representative shall certify the employee claim form in accordance with section 300.37(d)(1)(i) of this Part.

(7) The parties shall identify the evidence they intend to present at the initial expedited hearing, including lay witnesses and documents. The Workers' Compensation Law judge or conciliator shall schedule the initial expedited hearing at which testimony of the claimant and all other lay witnesses shall be taken and recorded for a date no more than 30 days after a pre-hearing conference at which the claimant was represented. However, if there is no request for the testimony of the claimant or any other lay witnesses the initial expedited hearing shall not be scheduled and held.

(8) If the insurance carrier requests an opportunity to have the claimant examined by an independent medical examiner, the IME report must be completed, filed and served in accordance with Workers' Compensation Law, sections 13-b(4) and 137 and section 300.2(d) of this Part at least three days before the date set by the Workers' Compensation Law judge or conciliator for the initial expedited hearing. If the claimant will not testify and no other lay testimony will be taken so an initial expedited hearing will not be scheduled, the Workers' Compensation Law judge or conciliator shall set a date that is no more than 30 days after the pre-hearing conference for the IME report to be filed and served. The failure to file and serve the IME report by such date shall be a waiver of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME report on the threshold issue of causal relationship, unless the insurance carrier makes a showing of good cause for such failure, and that it acted in good faith and with due diligence. The showing must be made by an affidavit by the insurance carrier or if represented, by its legal representative. Good cause shall include, but not be limited to, the inability to obtain medical records in advance of the hearing or the failure of the claimant to appear for an independent medical exam.

(9) The parties shall identify any medical witnesses they wish to cross-examine and indicate whether they wish the medical witnesses to appear at a hearing or by deposition. The Workers' Compensation Law judge or conciliator shall decide whether medical witnesses shall appear for cross-examination at a hearing or by deposition.

(10) For those medical witnesses to be cross-examined at a hearing, the Workers' Compensation Law judge or conciliator will set a hearing date no more than 60 days from the pre-hearing conference and may permit the medical witnesses to appear at the hearing by telephone.

(11) For medical witnesses to be cross-examined by deposition:

(i) the Workers' Compensation Law judge or conciliator shall direct that the depositions shall be conducted and the transcripts filed with the board no more than 55 days from the pre-hearing conference;

(ii) the Workers' Compensation Law judge or conciliator may permit depositions to be taken by telephone;

(iii) any medical report(s) and IME report(s) filed with the board and served on the parties prior to the deposition(s) shall constitute the direct testimony of the medical witnesses and there shall be no direct examination at the deposition unless requested by a party and authorized by the Workers' Compensation Law judge or conciliator upon a finding of exceptional circumstances. Any redirect examination shall be limited to points raised by the cross-examination; and

(iv) the decision of the Workers' Compensation Law judge or conciliator setting forth the directions and orders made at the pre-hearing conference, including the direction and order for medical witnesses to be cross-examined by deposition and whether direct examination was authorized, shall be sent to the medical witnesses who the parties are directed to examine. The first part of the decision containing the directions and orders shall prominently set forth:

(a) the direction for medical witnesses to be cross-examined by deposition and the transcripts filed with the board within 55 days of the pre-hearing conference or cross-examined at a hearing to be held within 60 days of the pre-hearing conference, which date shall be specified in the decision;

(b) whether direct examination of medical witnesses was authorized; and

(c) that payment for prior medical services by the insurance carrier may depend upon the medical witnesses' appearance at the deposition or hearing, as the case may be, in order to resolve this controverted claim.

(12) A legal representative appearing on behalf of a party must be authorized to enter into stipulations and a settlement or a person authorized to do so shall be available during the pre-hearing conference.

(13) If the claim is not settled or otherwise resolved at the pre-hearing conference, the Workers' Compensation Law judge or conciliator shall find that such claim, if otherwise covered by this section, is suitable for expedited hearings, unless the Workers' Compensation Law judge or conciliator finds that there are complex factual or medical issues, the resolution of which are not suitable for resolution through the process set forth in subdivision (h) of this section. Absent a finding to the contrary, claims involving death, occupational disease (not including, for purposes of this section, carpal tunnel syndrome), or sexual assault shall be presumed not suitable for resolution through the process set forth in subdivision (h) of this section. The Workers' Compensation Law judge or conciliator must set forth on the record the reasons for such finding.

(14) The Workers' Compensation Law judge or conciliator shall issue a decision stating all determinations, directions and orders made at the pre-hearing conference.

(15) The pre-hearing conference shall be recorded.

(16) If the claimant fails to appear or is otherwise not prepared to proceed, the case shall be marked as no further action. The case shall be scheduled for another pre-hearing conference upon the claimant's application advising that he or she is prepared to proceed.

(17) If the insurance carrier or its legal representative fails to appear, a Workers' Compensation Law judge or conciliator will render a decision based upon the evidence contained in the board file. The insurance carrier will be deemed to have waived its right to have an IME report considered on the issue of causal relationship and to cross-examine the medical providers who have treated the claimant. The foregoing is subject to the insurance carrier making the required showing for an adjournment pursuant to subdivision (j) of this section.

(18) Attendance fees for the hearing testimony or deposition of physicians, podiatrists, chiropractors and psychologists directed pursuant to this section shall be governed by Part 301 of this Title.

(h) Expedited hearing process in controverted cases when the claimant is represented.

(1) The initial expedited hearing:

(i) within 30 days following a pre-hearing conference at which the claimant is represented, the Workers' Compensation Law judge shall hold an initial expedited hearing at which testimony of the claimant and all other lay witnesses shall be taken and recorded. However, if there is no request for the testimony of the claimant or any other lay witnesses the initial expedited hearing shall not be held and the testimony of the medical witnesses shall be taken as set forth at the pre-hearing conference.

(ii) If a party's witness does not appear, then the party shall have waived the right to have the witness testify in-person or by deposition, unless the party makes a showing of good cause that he or she should be granted additional time, and that he or she acted with good faith and due diligence. The showing must be made by an affidavit of the legal representative of the party or, if the party does not have a legal representative, then by the party.

(iii) Independent medical examination. All IME reports shall be filed and served pursuant to Workers' Compensation Law, section 137(1)(a) and section 300.2(d)(11) of this Part no later than three days before the date of the initial expedited hearing as provided in subdivision (g)(8) of this section. If the IME report was filed and served in the five days before the initial expedited hearing, the insurance carrier's legal representative must bring copies of the IME report and proof of service to the initial expedited hearing for the Workers' Compensation Law judge and other parties. Failure to timely file and serve an IME report in a controverted claim shall be a waiver of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME report on the issue of casual relationship, unless the insurance carrier makes a showing of good cause that it should be granted additional time, and that it acted in good faith and with due diligence. The showing must be made by an affidavit by the insurance carrier, or if represented, by its legal representative.

(iv) If the insurance carrier filed and served an IME report at least three days prior to the initial expedited hearing, the claimant's legal representative must advise the Workers' Compensation Law judge if it still requests the cross-examination of the independent medical examiner.

(2) Hearing for medical witnesses when the claimant is represented.

(i) If the Workers' Compensation Law judge directs the testimony of any medical witness at a hearing, the Workers' Compensation Law judge shall hold a hearing that is no more than 30 days after the initial expedited hearing at which such medical testimony shall be taken unless the party to produce a medical witness shows good cause why the medical witness cannot appear by that date, and that it acted in good faith and with due diligence, in which case the hearing shall be scheduled as soon as practicable.

(ii) At such hearing, any medical report(s) and IME report(s) previously filed with the board and served on the parties shall constitute the direct testimony of the medical witnesses and there shall be no direct examination at the hearing unless requested by a party and authorized by the Workers' Compensation Law judge upon a finding of exceptional circumstances. Any redirect examination shall be limited to points raised by the cross-examination.

(iii) If the medical witness to be cross-examined by claimant's legal representative fails to appear as scheduled, then the insurance carrier's right to introduce the IME report from the witness or have the medical witness testify at a hearing or by deposition shall be waived, unless the insurance carrier makes a showing that the witness did not appear because of good cause, and that the insurance carrier acted in good faith and with due diligence. The showing must be made by an affidavit of the legal representative of the insurance carrier or, if the insurance carrier does not have a legal representative, then by the insurance carrier.

(iv) If the medical witness to be cross-examined by the insurance carrier does not appear for cross-examination as scheduled, then his or her testimony shall be taken by deposition at the earliest date practicable but no more than 30 days after the date the medical witness was originally scheduled to testify unless the claimant makes a showing that the witness could not appear within that period because of good cause, and the claimant acted in good faith and with due diligence. Such deposition may be taken by telephone. With respect to any such medical witness authorized by the chair or his or her designee to treat and/or conduct independent medical examinations of injured workers, the board shall promptly direct the witness to appear at such deposition. If the witness does not appear for the deposition, the testimony of the witness shall not be rescheduled at either a hearing or deposition and the chair or his or her designee shall take such action as it deems appropriate with respect to the witness' authorization to treat and/or conduct independent medical examinations of injured workers.

(3) Summations, memoranda of law and briefs. The parties shall be permitted to make oral summations at the last hearing to present evidence on the controverted issues, or the last deposition of a medical witness regarding causal relationship. In all cases, written post-hearing summations of the evidence, memoranda of law, and/or briefs are not permitted, unless the Workers' Compensation Law judge finds, on the record, that the claim presents extensive and complicated factual determinations or novel and important questions of law. All such post-hearing submissions, must be filed with the board and served on all other parties within five business days from such order or conclusion of the evidence, as described in paragraph (4) of this subdivision, whichever is later.

(4) Decisions.

(i) When the close of evidence occurs at a hearing, the Workers' Compensation Law judge shall advise the parties, on the record, of his or her decision, including the reasons and evidence supporting the decision, and that a notice of decision will be sent after the close of the hearing unless the Workers' Compensation Law judge determines on the record that there are extensive and complicated factual determinations or novel and important questions of law, in which case the written decision shall be issued within five business days of the hearing, or if post-hearing submissions have been ordered, within five business days of the date the post-hearing submissions are received or the post-hearing submissions were due, whichever is earlier.

(ii) Where the close of the evidence does not occur at a hearing, it shall occur no later than 60 days after the pre-hearing conference, subject to any adjournment of a hearing or deposition having been granted or unless the Workers' Compensation Law judge on the record finds exceptional circumstances respecting submission of additional documentation that warrants a longer period and states the basis therefore. If the close of the evidence does not occur at a hearing, but upon the submission of deposition transcript(s) and/or documentation directed or ordered by the Workers' Compensation Law Judge, then the Workers' Compensation Law Judge shall issue a decision within five business days from the close of the evidence.

(5) Applicability of section 300.34 of this Part. Notwithstanding any other provision to the contrary, the provisions of section 300.34 of this Part only apply to the resolution of claims covered by this section as specifically referenced in this section.

(i) Decisions in expedited hearing process. Decisions containing only orders or directions made by a Workers' Compensation Law judge in connection with the pre-hearing conference and expedited hearing process in controverted cases, pursuant to this section, including a finding that the medical report or medical reports constitute prima facie medical evidence, shall not be reviewable by the board under Workers' Compensation Law, section 23 until a decision has been made by a Workers' Compensation Law judge establishing or disallowing the claim.

(j) Adjournments in controverted cases.

(1) Adjournments for a deposition to a period of time beyond that specified in this section, a pre-hearing conference, or a hearing in a controverted claim shall only be granted in an emergency.

(2) The grounds for adjournment must be established by an affidavit of the legal representative of the requesting party (or if the requesting party is not represented, by the party), that shall be served on all other parties and filed with the board by the party promptly upon learning the circumstances that are the basis for the adjournment requested. In the event that the emergency occurs on the day of the pre-hearing conference or hearing, the legal representative may make an oral application for an adjournment which the Workers' Compensation Law judge may grant, conditioned upon the requesting party promptly filing with board a confirming affidavit, as described in this subsection.

(3) An adjournment, if granted, shall be as short as practicable and generally shall not exceed 20 days.

(4) Adjournment includes a rescheduling or continuance.

(5) An emergency is a serious event that occurs preventing the timely completion of some action ordered or directed by the board or regulation. An emergency includes death in the family, serious illness, significant prior professional or business commitment, and inclement weather that prevents travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action.

(6) If a Workers' Compensation Law judge finds that a request for an adjournment or continuance is not an emergency and is frivolous, he or she shall impose such penalties as are in accordance with Workers' Compensation Law, section 25(3)(d) and section 300.34(f) and (g) of this Part.

(k) This section shall not apply to controverted claims where an employer has failed to secure coverage, as referenced in Workers' Compensation Law, section 50, and subdivisions (g), (h) and (i) shall not apply if a claimant is unrepresented at the time of the pre-hearing conference at which hearing or hearings are scheduled for witness testimony.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.38

Amended New York State Register December 28, 2022/Volume XLIV, Issue 52, eff. 1/1/2023