N.Y. Comp. Codes R. & Regs. tit. 12 § 300.33

Current through Register Vol. 46, No. 45, November 2, 2024

Section 300.33 - Pre-hearing conferences

(a)Statement of purpose.

To address the conduct and processing of pre-hearing conferences, to provide a mechanism for the identification of issues and relevant evidence and to permit parties an opportunity to assess their case and to resolve outstanding issues prior to scheduling a hearing regarding those issues.

(b) All cases in which a notice of controversy and a medical report referencing an injury are submitted, shall be scheduled for a pre-hearing conference to be held as soon as practicable, but in no event more than 30 calendar days after receipt by the board of the notice of controversy and a medical report referencing an injury. Cases with outstanding issues, which cannot be processed through conciliation or administrative determination, shall be referred to a pre-hearing conference when necessary to complete any discovery.

(c) In all cases the notice of pre-hearing conference shall be governed by section 300.38(b) of this Part.

(d) All represented parties must file a pre-hearing conference statement in accordance with section 300.38(f) of this Part.

(e) The pre-hearing conference shall be conducted in accordance with, and all parties must comply with, all the provisions in section 300.38(g) of this Part, if the claimant has retained a legal representative on or before the date of the pre-hearing conference.

(f) If the claimant has not retained a legal representative on or before the date of the pre-hearing conference, the following provisions shall apply:

(1) Pre-hearing conferences shall be held before a Workers' Compensation Law judge or conciliator, who shall consider at the conference, with the parties or their authorized legal representatives, the following:

(i) confirmation that all appropriate information, forms or notices, including completed medical reports, have been submitted and a verification that all information on the forms and notices is accurate;

(ii) addition of any other necessary parties, where appropriate;

(iii) simplification and limitation of factual and legal issues, where appropriate;

(iv) presentation of a list of proposed witnesses, where appropriate;

(v) production of depositions of proposed witnesses, where appropriate;

(vi) scheduling the case for hearing; and

(vii) entering into a stipulation made in writing, in which case it shall be signed by all parties to the stipulation. All parties to the stipulation shall certify that they have been advised of the legal effect of the stipulation and that they have agreed to the stipulation of their own free will.

(2) Pre-hearing conferences may, if practicable, be held at each hearing location.

(3) The pre-hearing conference shall be recorded.

(4) Ten days before the pre-hearing conference, the insurance carrier shall file with the board a pre-hearing conference statement, on a form prescribed by the chair, noting all of the specific issues in dispute. The employer's or carrier's statement shall be accompanied by the carrier or employer's first report of injury and any medical reports, from a treating health provider(s) or consultants, which the employer or carrier has in its possession.

(5) Insurance carriers filing pre-hearing conference statements and accompanying material as directed in paragraph (3) of this subdivision shall:

(i) at the time of filing, also serve copies on all parties; and

(ii) state that all discovery has been completed, or shall detail what further discovery is necessary and why it was not completed prior to the pre-hearing conference; and

(iii) bring to the pre-hearing conference two copies of their conference statement and all accompanying material.

(6) If the claimant has not filed the appropriate employee claim form described in section 300.37(b)(1)(i) of this Part prior to the pre-hearing conference, the claimant will be directed to complete and file such form at the pre-hearing conference.

(7) If the insurance carrier requests an opportunity to have the claimant examined by an independent medical examiner, the independent medical examination report as provided in section 300.2(d)(3) of this Part (hereinafter referred to as IME report) must be completed, filed and served in accordance with Workers' Compensation Law, sections 13-b(4) and 137 and section 300.2(d) of this Part at least three days before the date set by the Workers' Compensation Law judge or conciliator for the hearing pursuant to paragraph (12) of this subdivision. The failure to file and serve the IME report by such date shall be a waiver of the insurance carrier's right to examine the claimant and to have filed on its behalf or otherwise have considered an IME report on the disputed issues, unless the insurance carrier makes a showing of good cause for such failure, and that it acted in good faith and with due diligence. The showing must be made by an affidavit by the insurance carrier or if represented, by its legal representative. Good cause shall include, but not be limited to, the inability to obtain medical records in advance of the hearing or the failure of the claimant to appear for an independent medical exam.

(8) At the conclusion of the pre-hearing conference, the Workers' Compensation Law judge or conciliator shall issue an order, in writing:

(i) simplifying and limiting the issues to be tried;

(ii) setting forth the names of witnesses, the agreements of the parties, if any;

(iii) the need for further discovery and its terms and conditions if authorized;

(iv) directing the production of deposition transcripts, if appropriate, and further noting that the case is trial ready or will be ready by a specific date.

(9) If the claimant fails to appear or is otherwise not prepared to proceed, the case shall be marked as no further action. The case shall be scheduled for another pre-hearing conference upon the claimant's application, advising that he or she is prepared to proceed.

(10) If after being sent notice, the insurance carrier or its legal representative fails to appear, a Workers' Compensation Law judge will render a decision based upon the evidence contained in the board file.

(11) Decisions containing orders or directions made by the Workers' Compensation Law judge or conciliator at the pre-hearing conference, pursuant to this section, shall be interlocutory, and shall not be reviewable by the board under section 23 of the Workers' Compensation Law until a decision has been rendered on the controverted issues.

(12) The Workers' Compensation Law judge or conciliator presiding at the pre-hearing conference shall schedule the hearing date on which the testimony of the claimant and lay and medical witnesses shall be heard, to the extent such testimony is requested by any party, or in their absence, depositions shall be submitted into evidence. The hearing shall be scheduled to take place within 60 calendar days after the conclusion of the pre-hearing conference. Every effort shall be made to complete the presentation of evidence at a single hearing. Adjournments of such hearings shall be granted only as provided in section 300.10 of this Part.

(13) Attendance fees for the testimony or deposition of physicians, podiatrists, chiropractors and psychologists directed pursuant to this section shall be governed by Part 301 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.33

Amended, New York State Register April 2, 2014/Volume XXXVI, Issue 13, eff. 4/2/2014