Field Guide to New York Workers’ Compensation Hearings

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.

Requesting hearings.

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.

As per 12 N.Y.C.R.R 300.23(b):

In any case where the board has made an award of compensation for a temporary total or temporary partial disability at an established rate of compensation, and there is a direction for continuation of payments, the employer or carrier shall continue payments at such rate, and such payments shall not be suspended or reduced until: (1) there is filed with the chair in the district office where the case is assigned, a notice of intention to suspend or reduce on a prescribed form accompanied by supporting evidence justifying such suspension or reduction together with proof of mailing of copies thereof upon the claimant, his/her doctor and his/her representative.

Our practical advice for requesting hearings before the Board is to include the documentary evidence in support of the relief requested as an attachment. Another common employer request is to address ongoing benefits in cases where an IME physician has found the claimant to have reached MMI or where there is an issue as to degree of disability. We strongly recommend that a copy of the IME report or medical records to be relied upon be attached to the RFA-2 form.

Trial on Limited Issues – Non-Expedited.

In an established cases issues arise that must be resolved by way of trial. Typical trial topics in an established (or admitted) case include: nature and degree of temporary disability, disputes about medical treatment issues, attachment to the workforce, reduced earnings, and employee fraud. Less commonly, trials can be held on issues including establishment of an average weekly wage, concurrent employment, wage expectancy, or any other issues in dispute.

Parties will often bring the disputed issue to the attention of the Law Judge by filing an RFA-2 (by the employer) or RFA-1LC (on behalf of the claimant). Once the issue is raised, the Board will set the matter down for a hearing before a Law Judge. If the issue can not be resolved, it may be set down for a trial on the issue, by way of a Notice of Decision (Form EC-23).

Trial proceedings are non-continuous. Most medical testimony is produced by way of deposition rather than live testimony. The parties will coordinate the schedule of physician testimony in accordance with the schedule set by the trial judge. Nearly all physician testimony take place by telephone deposition.

All non-medical testimony must be presented before the Law Judge, with rare exception for witnesses who reside out of state. Typically, the testimony of the claimant will be presented last, after medical testimony has been produced.

Each case set down for trial will have a date in which all depositions transcripts must be completed. Extensions of time can be granted by the Court for good cause shown, but the Affidavits in support of a request to extend time must be filed ten (10) days prior to the date the depositions transcripts were to be submitted.

Following the submission of all testimony, the Law Judge will issue a decision from the bench or make a reserved decision. It is the practice of my office to always request an opportunity to submit a memorandum of law and summation of facts to aid the Judge in reaching their final decision.

In my office, simple trials on issues represent approximately 50% of our overall trial practice (with the other 50% being expedited proceedings, generally for denial/controverted claims).

​Expedited Hearings.

WCL §25(3)(d) applies to all cases where “issues have not been resolved within one year after such issues were raised before the Board, or if multiple claims arise from the same accident or occurrence, or if all parties agree to an expedited hearing, or where a notice of controversy has been filed, or if the chair otherwise deems it necessary, the chair may order the case transferred to the special part for expedited proceedings.”

The “Special Part for Expedited Proceedings” simply refers to a case being set down for a trial, with a date certain as to the decision. The case is not actually transferred to a new judge or into special courtroom. The goal of transfer to an Expedited Hearing calendar is “for all issues to be decided in one hearing.”

The Regulations which govern practice in the Expedited Hearing part are set forth at 12 N.Y.C.R.R. 300.34. A case is moved to the expedited part by way of an Order, issued after a hearing. Within 20 days of transfer to the expedited part, both parties must file a “Pre-hearing Conference Statement” (Form PH-16.2) if one was not previously filed. An initial hearing must be scheduled within 30 days after the Order of transfer to the expedited calendar is issued. There is no “electronic” equivalent of the Pre-hearing Conference Statement.”

Adjournments by the defense may be granted for no longer than 30 days. If the adjournment request of the defense is deemed “frivolous” the attorney who makes the request shall be personally liable for a $1,000 penalty.

Only the final decision of the Law Judge in a case assigned to the expedited part can be appealed; all orders concerning the proofs, testimony, or evidence are “interlocutory” and not subject to appeal. Only a final decision, or an interim determination of accident or occupational disease, notice, causal relationship or monetary award can be appealed.

Greg Lois is the managing partner of LOIS LLC, a 19-attorney law firm dedicated to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@lois-llc.com