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). Continue reading Explainer: The Expedited Trial Process in Converted New York Claims.
Here is the post-webinar video from our most recent presentation, “Getting the Most from your IMEs” from our New Jersey workers’ compensation webinar training series.
Subject: New Jersey, Workers’ Compensation Law, IMEs
Date Presented: October 24, 2016
Presenter(s): Michael Tomasino, Esq. and Greg Lois, Esq.
Run time: 25:26
How to attend these webinars live and ask questions.
Join us for our monthly webinars on New York and New Jersey workers’ compensation law. One Session, offered at 12:00EST on the “Fourth Monday” of the month.
Register here: 12:00 EST Session
Archive of prior presentations is here.
Schedules and Information.
Handout materials are provided in advance of each session. The webinar courses follow the “life cycle” of a claim and correspond to chapters in the Workers’ Compensation Handbooks offered by the Firm.
Detailed syllabus and schedule available here.
In 2015 employers reported 134,580 accidents in which employees suffered injury or occupational disease. In the same year, 34,500 new claim petitions were filed in the New Jersey Division of Workers’ Compensation. An additional 6,250 re-opening claim petitions were filed in the same period. The vast majority of trials are resolved by the parties before testimony is completed and before a judge makes a final determination. Approximately 160 of those cases will be decided by the Division’s Judges after a complete trial.
Trial & Evidence
All workers’ compensation trials are decided solely by a Judge of Compensation: there is no jury. A judge is given wide latitude to decide cases. The standard of proof for a judge’s findings was outlined in the Supreme Court case of Close v. Kordulak. The court inquired “whether the findings made could have been reached on sufficient credible evidence in the record after giving due weight to (the judge’s) expertise in the field and his opportunity to hear and observe the witness.” See Close v. Kordulak, 44 N.J. 589, 599 (1965). Continue reading In brief: Trial of New Jersey Workers’ Compensation Cases
In New York, when an individual suffers an accident or illness arising out of and in the course of employment, workers’ compensation becomes the primary source of wage replacement and medical benefits. It is important to understand how workers’ compensation benefits affect or are affected by other available benefit programs. Some of these additional benefit programs duplicate workers’ compensation benefits, some supplement workers’ compensation benefits, and others are paid instead of workers’ compensation benefits.
Private Long Term Disability Benefits: Some employers voluntarily provide employees with long term disability benefits. Individuals can also obtain these policies on their own. Long term disability benefits are typically available for periods of disability which extend beyond an ‘elimination period.’ These policies issue indemnity benefits to policyholders who are disabled and unable to work beyond a set period of time, i.e. six months, 26 weeks, or another set period of time specified in the long term disability policy.
The Workers’ Compensation Board does not have jurisdiction over private long term disability benefit plans. As there is no jurisdiction, the Board has no legal authority to direct reimbursement for a duplication of benefits. Therefore, a claimant can receive both workers’ compensation indemnity benefits and benefits from their long term disability policy at the same time and even receive more from the two than their normal weekly wage while working. However, most long term disability policies contain provisions that require reimbursement to the long term disability carrier or take an offset for any workers’ compensation benefits. These reimbursements and offsets are to be determined in accordance with the terms of the long term disability policy. Continue reading How an Award of Workers’ Compensation Benefits Impacts Other Disability Benefits
The New York Workers’ Compensation Board will schedule hearings on its own initiative. Every hearing will have a “goal” and will result in the entry of an Order. The goal of every hearing is transmitted to the parties of interest on Form EC-16.1. Initial hearings are held to address the establishment of a case: parties must be prepared to discuss the particular facts of the accident, notice, and the causal relationship of the alleged injuries to the employment.
In an admitted case, defense counsel will rely on handling instructions, the Form C-2F (if any), the FROI/SROI screens, the return-to-work information available, and the wage information contained in the FROI. Statements contained in the filings (particularly in the Form C-2F) may be considered stipulations and binding (on the part of the employer).
Prior to any regularly-scheduled hearing (particularly in an established case) the issues facing the carrier/employer should be well understood. Hearing notices are prepared and mailed to all parties by the Board approximately 21 days prior to the date of hearing. Defense counsel should supply the employer with an action plan for upcoming hearings and request any necessary documents/information in preparation for the listing.
Any party can request a hearing as per WCL §20, which states:
[The Board] upon application of either party, shall order a hearing, and within thirty days after a claim for compensation is submitted under this section, or such hearing closed, shall make or deny an award, determining such claim for compensation, and file the same in the office of the chair. Immediately after such filing the chair shall send to the parties a copy of the decision. Upon a hearing pursuant to this section either party may present evidence and be represented by counsel.
A carrier requests a hearing by filing a Form RFA-2 (“Request for Further Action by Carrier/Employer”). The most common Request for Further Action filed by employers is a request to stop or reduce benefits in a case where ongoing benefits have been ordered by the Court. A carrier/employer can not simply stop paying benefits because an IME physician says the claimant has reached “MMI” or has a reduced level of disability – there is no “self help” allowed and the case must be heard by a Law Judge before benefits can be stopped or reduced. Continue reading Field Guide to New York Workers’ Compensation Hearings
Here is the post-webinar video from our most recent presentation, “Getting the Most from your IMEs in New York” from our New York webinar training series. The complete archive of prior presentations is here.
Join us for our monthly webinars on New York and New Jersey workers’ compensation law. Click here to register.
Date Presented: September 19, 2016
Presenter(s): Usra Hussain, Esq. and Greg Lois, Esq.
Run time: 27:13
Continue reading Getting the Most from your IMEs in New York: Post-Webinar Video