When a claim is controverted, a pre-hearing conference (PHC) will be scheduled by the Board as soon as practicable. The purpose of the PHC is to determine what additional evidence is required, place any additional necessary parties on notice, identify and narrow the issues in controversy, identify proposed witnesses, enter into a stipulation if appropriate, and schedule further hearings. When the claimant is represented, the parties are required to submit a PHC Statement (Form PH-16.2) to the Board at least 10 days prior to the scheduled date of the PHC.

The failure to file a timely notice of controversy using First Report of Injury 04-Denial (Form FROI-04) or Second Report of Injury 04-Denial (SROI-04) potentially results in the payer waiving several defenses to the claim, and failure to file a timely Pre-Hearing Conference Statement (PHC Statement) can potentially result in the payer waiving all defenses to the claim. The Board may excuse the untimely filing of a notice of controversy upon a “showing of good cause” based upon evidence of “mistake, inadvertence, omission, irregularity, defect or surprise, or based upon newly discovered evidence” (WCL § 25(2)(b)). Likewise, the Board may excuse the untimely filing of a PHC Statement  “if the Workers' Compensation Law Judge finds, based on the affidavit of the insurance carrier's legal representative (or if the insurance carrier does not have a legal representative, then by the insurance carrier), that the conduct at issue was due to good cause and the insurance carrier exercised good faith and due diligence” (12 NYCRR 300.38(f)(4)). If a payer believes the untimely filing of a notice of controversy or a PHC Statement should be excused, they should be prepared to submit relevant supporting evidence at the PHC.

Parties are encouraged to stipulate to uncontested facts, frame all legal issues, and identify proposed witnesses at the PHC. For example, the law specifies “[a] legal representative appearing on behalf of a party must be authorized to enter into stipulations and a settlement or a person authorized to do so shall be available during the pre-hearing conference” (12 NYCRR 300.38(g)(12)). However, if a payer indicates it intends to submit video evidence into the record, the parties may stipulate that the evidence can be entered into the record without the testimony of a witness to authenticate the video, thereby reducing the number of necessary witnesses and potentially resulting in quicker resolution of the claim.

In most controverted claims, for a claim to be established, the claimant must submit medical evidence that their injuries are causally related to their employment. At the PHC, a claim will move forward to trial as long as the record contains “prima facie medical evidence” (12 NYCRR 300.38(g)(3)(i)), defined as “a medical report referencing an injury, which includes traumas and illnesses” (12 NYCRR 300.1(a)(9)). However, medical evidence that satisfies the minimal standard to be considered prima facie medical evidence may not constitute sufficient evidence of causal relationship to support the establishment of the claim. In this situation, the claimant’s representative may decide that it is in their client’s best interest not to move forward to trial until they can submit additional medical evidence in support of the claim.

When depositions are ordered at the PHC, the parties should be summarizing them at the end of the last deposition in the claim, unless the Judge has ordered the parties to submit summations into the record or at the next scheduled hearing.
There should be no ambiguity in the decision of a PHC. Parties should know and understand their obligations at the close of the PHC. If parties do not understand their obligations, they should request clarification on the record.