How a New York Workers’ Compensation Claim is Controverted – Initial Considerations

Recently, we posted an article detailing the most common defenses that are used in denied New York Workers’ Compensation claims, that article can be found here.

Controverting a claim in the state of New York also requires that the carrier and/or self-insured and the defense counsel submit very specific forms in a statutorily defined time frame in order to raise and maintain those defenses.  In most cases, if these aforementioned forms are not submitted in a timely fashion or are defective, the carrier and/or self-insured may waive all of its defenses and may have to accept the claim as compensable.

Initial Considerations in Controverted Claims        

The process to controvert or deny a workers’ compensation claim in the state of New York is initiated when the carrier or self-insured files the electronic First Report of Injury – Denial Type 04 (FROI-04) which can be viewed here or a Subsequent Report of Injury – Denial Type 04 (SROI-04) form which can be viewed here. These forms now replace the Form C-7 or Notice that Right to Compensation is Controverted form, which used to be the forms upon which a claim was controverted. To view the obsolete form you can click here.

The FROI-04 includes a description of the factual and legal defenses raised as well as information about the employee, the employer, and the insurance carrier.  According to New York Workers’ Compensation Law § 25(2)(a)  the FROI-04 or SROI-04 must be filed by the carrier or self-insured employer within eighteen (18) days of the disability or within ten (10) days after the employer gains knowledge of the disability, whichever is greater.

The carrier or self-insured’s legal counsel will also file an OC-400.5 form, found here which is a certification that the carrier or self-insured’s denial of the claim is not frivolous and is based upon facts that will be supported by evidence.

After the filing of the aforementioned documents and provided the claimant has submitted proper medical evidence to the Workers’ Compensation Board’s electronic case file, the Workers’ Compensation Board will schedule a pre-hearing conference at which the Judge of Compensation will hear the initial issues in controversy and the parties will identify a list of witnesses that may be called upon to testified at a trial.

According to 12 NYCR 300.38(f)(4) , a pre-hearing conference statement (Form PH-16.2) must be filed at least 10 days prior to the scheduled pre-hearing conference or all defenses will be waived. The New York Appellate Court in Quagliata v. Starbucks Coffee, NY Slip Op 01553 (App. Div. 3d Dep’t., Decided March 3, 2011 has upheld the waiver of defenses where the employer raised jurisdictional defenses in timely submitted denial documents but then subsequently failed to file a pre-hearing conference statement (PH-16.2) 10 days prior to the hearing.

If the aforementioned initial documents are properly filed by the carrier or self-insured prior to the Pre-Hearing Conference and if the claimant maintains his or her claim, a trial will be scheduled at which the parties will produce witnesses and make their arguments regarding the issues in controversy. Following the trial, a Workers’ Compensation Law Judge will render a decision on the compensability of the claim.

All of the forms mentioned in this article, as well as, all of the  most commonly used New York State Workers’ Compensation forms can be found on the New York State Workers’ Compensation Board’s website, to view please click here.

How to Controvert a Claim – Brief Outline

Below is a brief outline of the forms that a carrier or self-insured is required to file in order to maintain the denial of a controverted claim in the state of New York:

  • FROI-04 or SROI-04 – establishing factual and legal denial of claim and noting defenses.
    • Must be filed by the carrier or self-insured within 18 days of the accident or no later than 10 days after the employer has knowledge of the accident, whichever is longer.
  • OC-400.5 – filed by the attorney certifying and maintaining that defenses are not frivolous and are supported by evidence.
  • PH-16.2 – PH Conference Statement – maintains defenses and identifies potential witnesses.
    • Must be filed with the Board no less than 10 days prior to the scheduled Pre-Hearing Conference.
    • If witness is not named in the Pre-Hearing Conference statement the right to their future testimony is waived.

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The New York Handbook

Our webinar series was designed as a complement to our New York Workers’ Compensation Handbook. The Handbook is written in “plain English” and provides a resource for risk managers and claims professionals who need a complete and easy-to-use reference guide for handling New Jersey claims.

Digital editions of our book on New York workers’ compensation defense are available for download (FREE) here:
New York PDF link: bit.ly/nywcpdf
New York ePUB link: bit.ly/nywcepub
New York Kindle link bit.ly/nywckindle

 

Joseph Melchionne is an associate attorney at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. Joseph can be reached directly at jmelchionne@lois-llc.com or 201-880-7213.