Over the years we have observed numerous valid controversies fail due to untimely filing of Pre-Hearing Conference Statements. We recommend that any case where a FROI-04 or SROI-04 are filed that a Pre-Hearing Conference Statement and a OC-400.5 Certification be prepared simultaneously.
The Workers’ Compensation Board requires service on all parties of the PH-16.2 (Pre-Hearing Conference Statement) 10 days prior to the Pre-Hearing Conference. If the Pre-Hearing Conference Statement is not timely filed or is determined to be materially incomplete, this results in an immediate waiver of the defenses of the claim. Any witnesses who support the defense must be listed on the Pre-Hearing Conference Statement or they will not be considered by the Board. Any document which supports the controversy must be filed along with the Pre-Hearing Conference Statement to be considered by the Board in determining compensability.
The Board will not excuse a late Pre-Hearing Conference Statement without an Affidavit of the Insurance Carrier’s legal representative that the untimely filing of the Pre-Hearing Conference Statement was due to good cause and asserts that the carrier exercised good faith and due diligence in controverting the claim. Generally, an excuse with some validity must be offered as to why the Pre-Hearing Conference Statement was filed late. The excuse must be set forth is a sworn Affidavit filed at or before the Pre-Hearing Conference when a late Pre-Hearing Conference Statement has been filed.
Valid controversies could be lost even in cases where the Pre-Hearing Conference Statement was timely filed if the key witness is not listed on the Pre-Hearing Conference Statement. Any written documents or closed circuit video should be filed with the Board along with the Pre-Hearing Conference Statement.
In our experience, the best way to avoid the waiver of defenses is to file the Pre-Hearing Conference Statement contemporaneous with the completion of the FROI-04 or SROI-04. Amendment of the PH-16.2 Form is available as an option when necessary.
The Workers’ Compensation Board continues to require written certification from the carrier’s legal representative with regards to the validity of the controversy. The Board requires defense attorney certification that the defenses asserted in the controversy have evidentiary support or are likely to have evidentiary support of upon further investigation. The certification of the controversy is required at or before the Pre-Hearing Conference. Defense attorney participation in formulating defense strategy is necessary.
