Dramatic Changes: Workers' Compensation Hearing Process

1. Pre-hearing conference statement must be completed and filed no less than 10 days before the hearing. If not completed, penalties are to be imposed.
2. Pre-hearing conference:
3. 1. If claimant not present or no prima facie case, case will be closed. If carrier is unrepresented or investigation is not complete so as to name witnesses, etc., carrier will be penalized and/or Judge can render a decision based on evidence in the record.
   2. Parties will be directed to limit or simplify the issues.
4. a.) For represented claimants:
   1. All medical testimony will be directed to be taken by deposition, with transcripts filed no later than 60 days from the order. If the transcripts are not filed within 60 days, the ALJ is to decide on the record as it exists. The ALJ has 30 days to render a decision after the due date (60th day). We cannot use Board reporters. We must use independent stenographers at the prevailing page rate in the locale.
   2. The use of deposition to take lay witness testimony shall also be directed wherever feasible.
   b.) For unrepresented claimants: Medical testimony will continue before the Administra-tive Law Judge with no similar time constraints.
5. No adjournments or continuances will be granted except under "extraordinary" conditions. Parties will be limited to one adjournment.

6. Defense Law Letter
   Page 2
   January, 1999

7. Sworn testimony of the claimant will occur at every hearing on the issues of earnings or return to work, if a claim is being made for payment of lost wages.
8. Implicit in these changes is the strict enforcement of time requirements in the Board Rules (e.g., carrier's consultant's report must be filed with all parties within 10 days of exam or be precluded). Also, penalties will be utilized aggressively to eliminate unjustified adjournments.

The implementation of these dramatic changes with no warning or input from the claimants or defense bar or carriers and employers has raised a furor in the Albany District. Practitioners are extremely upset over the deposition requirements because of the substantial expense and time required to complete them. The logistics are difficult because of scheduling, witness fees, no Administrative Law Judge to control the proceedings, etc. In addition, the continuing hearing process before an ALJ for unrepresented claimants presents serious legal issues such as "due process" and "equal protection under the law." In effect, it penalizes claimants who are represented by attorneys or representatives, and removes their cases to a deposition format, at greater expense, and perhaps with further delays caused by appeals. It penalizes carriers by removing the Judge from evaluating the credibility and demeanor of the witness, and severely compresses our time to produce evidence in support of our defenses. Among members of the Bar, a consensus has developed that the 60-day order which covers all necessary medical witnesses will be to extremely difficult comply with, and that the Board knows it to be difficult.

The genesis of this initiative can be found in the news publication issued by the Board, called "Focal Points," January, 1999. Most frightening is the quote ". . .Judges will no longer fear that their decisions will be overturned on review, and will know that the Office of Appeals will uphold any reasoned decision firmly grounded in the Workers' Compensation Law." This is a license for arbitrary, capricious, and abusive decisions against employers and carriers. It is an outrageous statement and usurps the power of the Appeals Board.

The cost to administer depositions will be substantial. As you are aware, we have endeavored to provide cost-effective defense of controverted claims by means of a fee agreement. Those agreements were based on volume and the fact that we were present with other files for hearings at each hearing point. Depositions are held at the doctors' offices. We must schedule depositions at doctors' offices, sometimes at 4, 5, 6 or 7 P.M., or on Saturday, etc., at the convenience of all parties. We must advise you that because of this significant change in the hearing process, our method of billing must properly reflect the professional time involved. Therefore, effective immediately, for all cases remanded to the deposition format, we will bill our time for file review, witness preparation, travel time and deposition with report and analysis, on the hourly basis.

Many of our clients have expressed negative views on these expensive changes. I suggest that you address your letters, unfavorable or otherwise, to Chairman Snashall. You may secure a copy of the "Focal Points" directly from the Board. The General Counsel's Office insists that we file a Freedom of Information Request (FOIL) to get copies of the "new rules." Isn't that a friendly gesture? We are proceeding accordingly.

Any questions, please call us.

STOCKTON, BARKER & MEAD
By Robert S. Stockton