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September 10, 2018

A workers' compensation carrier's unexcused error in submitting a pre-conference statement constitutes a waiver to any defenses to the employee's claim


A workers' compensation carrier's unexcused error in submitting a pre-conference statement constitutes a waiver to any defenses to the employee's claim
Love v Village of Pleasantville, 2018 NY Slip Op 03794, Appellate Division, Third Department



The genesis of the appeal was the Workers' Compensation Board's [Board] ruling, among other things, that the employer and its workers' compensation carrier [jointly "Carrier"] waived their defenses to the injured Town employee's [Claimant] workers' compensation claim.



Carrier had controverted the claim by filing a prehearing conference statement, which it served on Claimant and a law firm that did not represent Claimant. On the same day Claimant's counsel filed with the Board, and served on Carrier, an attorney/representative certification indicating that he had been retained by Claimant to represent him in the matter.



Subsequently a notice of a scheduled prehearing conference date was sent to the parties by the Board, a copy of which sent to Claimant's counsel and which notice included Claimant's counsel's address.



Carrier next filed an amended prehearing conference statement the day before the conference hearing, again serving Claimant and a law firm that did not represent Claimant.



Ultimately, the Board ruled, among other things, that Carrier waived its defenses to the claim because it did not serve a prehearing conference statement on Claimant's counsel.



In response to Carrier's appeal, the Appellate Division sustained the Board's determination noting that §25(2-a)(d) of the Workers' Compensation Law requires that a prehearing conference statement be filed 10 days prior to the conference. This directive is also set forth in 12 NYCRR 300.38(f)(1) and in the notice of prehearing conference sent to the parties by the Board. Further, 12 NYCRR 300.38 states that a "Failure by the insurance carrier to timely serve upon all other parties . . . the [prehearing] conference statement . . . shall result in a waiver of defenses to the claim."



Observing that [1] the pre-conference statement was not filed within the requisite statutory time period; [2] Carrier failed to serve Claimant's counsel with a prehearing conference statement; nor [3] did Carrier attempt to correct its erroneous service upon the wrong law firm, the Appellate Division said it found Carrier's argument that because "no prejudice to Claimant resulted from these omissions," its failure to properly serve Claimant's counsel should be excused.



Such conduct, said the court, can only be excused where the legal representative of the insurance carrier submits an affidavit that the error was due to good cause and that the insurance carrier exercised good faith and due diligence. In this instance the Carrier did not submit such an affidavit.



Accordingly, the Appellate Division said it found no reason to disturb the Board's finding that Carrier waived its defenses to the claim by failing to properly serve Claimant's counsel.



The decision is posted on the Internet at:


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