Difficulties and Questions Presented by the Board’s New Digital Audio Recordings

Since the inception of the statewide virtual hearing platform in March of this year, there have been many concerns over the efficiency and effectiveness of the new hearing process. One of the major concerns has been whether there will be a clear, concise, and easily accessible record of workers’ compensation hearings. The virtual hearing platform brought with it a digital audio recording system that records all workers’ compensation hearings verbatim. This system replaced the old system of a court stenographer being present for every hearing. This has changed the standard form of the record from a written one to an audio file.

If an audio recording of a hearing is needed, an e-mail must be sent to the NYS Workers’ Compensation Board with identifying information including the last four digits of the claimant’s social, date of injury, and carrier case number to name a few of the requested pieces of information.

Where this new audio system has run into resistance is the difficulty and time needed to listen to a recording for the purposes of evaluating a potential issue for an appeal to the Board. Of course, a written record is easy to access; you can reference the material repeatedly without rewinding and can directly quote the material with ease. With the audio recording on the other hand, these tasks are not so simple and can become very time consuming. Continually having to rewind sections of the recording or replay the entire recording through may be needed in order to ensure that every piece of information needed has been gathered.

The Board stated during its public comment period that transcripts will still be made available when requested. See, Assessment of Public Comment, as a practical matter, it appears that an appeal must be specifically requested in order to trigger the Board to assign a stenographer to transcribe the digital recording. However, the decision to take appeal is not always an automatic decision. Often times, additional investigation, research, and discussion lead to a final decision to submit an appeal. The issue remains that digital recording is the primary record of the hearing and therefore, is the most utilized medium for reviewing the contents of the hearing. Parties must also contend with the 30-day deadline for appeals when contemplating the decision to request a transcription. If a decision to take appeal is made close to the deadline, there is a chance that a transcription will not be back in time.

There are additional concerns over the quality of the record. There are several Board Panel Decisions that have found the audio incomprehensible or incomplete. In those circumstances, the Board has remanded the outstanding issue back to the Law Judge for re-adjudication. So far, the Third Department has not weighed in on the quality or availability of an accurate record.

With any new procedural or technological change, there is always resistance and a slow and grudging effort to adapt current practices and processes to fit the change. Every attorney’s goal is to be able review the contents of the hearing as efficiently and accurately as possible in order to provide the best possible counsel to the client. The audio record certainly makes that a challenge and has also made the appeal writing process a little more time consuming. It remains to be seen whether the Board will enact new measures to ensure the audio record is clear or instructions for how and when transcripts can be requested.

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