by Michael Memberg, Esq.

A very recent decision from the Court of Appeals confirms just how important it is from employers and insurers to take steps to ensure that any and all claims are responded to by either the adjuster or defense counsel. In Ready Mix USA, Inc. v. Ross, the Court of Appeals affirmed a Board Award against an employer/insurer who failed to appear at the hearing.

The facts of the case show that the hearing notice was sent to the proper address for both the employer and insurer. The claimant’s attorney also served discovery (including requests for admissions), but there was no response from the employer/insurer. When the hearing date came, the claimant presented an undefended case, and the ALJ awarded benefits. After the award, employer/insurer retained defense counsel, but the Appellate Division and the Superior Court upheld the award. The main argument was that they had no notice of the hearing, but that argument carried no water with any of the appellate bodies. Other substantive defense arguments were raised as distractions to the ultimate issue, but nothing could overcome the failure to appear at the hearing to present a defense.

We know that this is an uncommon occurrence, but it is a clear example of how important it is for employers, insurers, and TPAs to maintain communication among each other and with defense counsel. Something we see more often is where a claimant fails to list the proper TPA (or any TPA at all) on the hearing request, which could lead to the same sort of issue. If that happens, we recommend insisting that that claimant’s attorney file an amended hearing request as soon as possible to correct the error—we address this issue immediately on any claim referred to us. Even if the wrong TPA is listed, the employer and insurer are still responsible under the law if their proper addresses are listed on the hearing notice unless they take additional actions prior to the hearing.