Untimely Notice of Controversy or Pre-Hearing Conference Statement? Why Carriers Should Not Give Up Hope on a Disallowance

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Where a carrier has elected to controvert a claim, the Workers’ Compensation Law in New York sets forth a strict timeframe for filing a denial and initial pleadings. Section 25(2)(b) provides that once a claim has been indexed against an employer, the carrier must file a notice of controversy with the Chair within 25 days. Failure to file the notice of controversy within the prescribed 25-day time limit shall bar the employer and its insurance carrier from asserting multiple defenses, including that the claimant was not at the time of the accident an employee of the employer, or that the claimant did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment.

On occasion, we are referred claims where the carrier intended to controvert the claim, but did not file a timely notice of controversy. Furthermore, in circumstances where a pre-hearing conference statement cannot be filed 10 days prior to the pre-hearing conference, the carrier runs the risk of being barred from presenting employer witnesses, obtaining an independent medical examination (IME), and asserting its defenses.

In a system where the law provides for a statutory presumption in favor of the claimant, an untimely filing of the notice of controversy and/or pre-hearing conference statement significantly limits the means available to the carrier to dispute the compensability of a claim. However, just because a notice of controversy and/or pre-hearing conference statement are not timely filed does not mean that the carrier should dismiss the possibility of the claim being disallowed.

It remains the claimant’s burden to establish a causal relationship between his or her employment and the alleged injury or occupational disease. Therefore, even where the carrier has been barred from presenting employer witnesses, obtaining an IME, and asserting its defenses, the carrier can still question whether the claimant has submitted sufficient evidence of causal relationship. Procedurally, this is accomplished by asserting the right to cross-examine the claimant’s attending physicians whose reports are on file pursuant to NYCRR 300.10(c).

Recently, we have prevailed in multiple cases where claimants’ doctors have failed to provide a credible statement on causal relationship during the course of their testimony. Judges often find prima facie medical evidence based on the reports of doctors who have examined a claimant on one or a only few occasions. Thus, in the course of testimony, it can become apparent that a doctor is unfamiliar with the claimant’s employment, medical history or the alleged mechanism of injury. Ultimately, if the claimant’s attending physician concedes that he or she is unable to causally relate the claimant’s injury to the alleged accident, or condition to the claimant’s employment, within a reasonable degree of medical certainty, then the carrier has a strong basis to argue for a disallowance of the claim.

In order to maximize the means available to litigate a controverted claim, it is imperative that the efforts of the employer, carrier, and defense counsel are coordinated to ensure that a notice of controversy and pre-hearing conference statement are timely filed. However, in circumstances where this cannot be accomplished and the carrier will likely be barred from presenting employer witnesses, obtaining an IME and asserting its defenses, the carrier maintains the right to develop the record on the issue of causal relationship via medical testimony to contest the compensability of a claim.

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