Hamberger & Weiss LLP

A Reminder Regarding Medical Treatment Denials and Expedited Hearings

As we reported in our March 2017 issue, we have noticed WCLJs strictly enforcing the requirement on Board Notices of Hearing regarding the scheduling of depositions in cases involving medical treatment issues. Specifically, WCLJs are precluding employers and carriers from scheduling depositions on these treatment issues when no attempts have been made to complete the deposition prior to the initial expedited hearing on the issue. Any denial of a C-4AUTH will result in an expedited hearing.  A review request of an MG-2 will generally result in an expedited hearing, unless the claimant and carrier both request that the Board’s medical arbitrator review the denial.

If you receive a Notice of Expedited Hearing on a medical treatment issue, that Notice will usually contain language directing the parties to complete depositions prior to the hearing. If that is the case, we strongly recommend that you contact defense counsel to review the file to determine if a deposition should be scheduled. Often we do not recommend deposition testimony, particularly if the treatment at issue involves physical therapy or chiropractic care or where the attending physician didn’t meet his or her burden of proof in making the treatment request. But in those cases involving surgery requests or other expensive forms of treatment, it may be advisable to depose the treating physician.

A PH-16.2 should be filed in advance of any expedited hearing, even if the claim is not controverted. Under 12 NYCRR 300.34, a PH-16.2 must be filed within twenty days of the file being transferred to the expedited hearing process. However, 300.34 also requires the PH-16.2 be filed in accordance with 300.33, which requires the PH-16.2 be filed ten days before any pre-hearing conference. 12 NYCRR 300.33. Prior Board Decisions have held that failure to file a PH-16.2 prior to an expedited hearing scheduled to address a treatment denial issue will result in a waiver of the right to cross-examine any medical witnesses. In addition, if the deposition cannot occur prior to the expedited hearing, a written affirmation must be submitted. However, in no circumstances may an adjournment be granted more than thirty days after the pre-hearing conference.

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