Matter of McDonell v CJ Banach Inc.

Holding The Board lacked discretion to excuse the carrier’s failure to serve the pre-hearing conference statement because the governing rule mandates waiver of defenses absent a showing of good cause and good faith. The carrier’s defenses were properly waived because it failed to provide the required affidavit demonstrating that the error was due to good cause and that it exercised due diligence.

The court’s words

failure by the insurance carrier to timely serve upon all other parties . . . the pre-hearing conference statement . . . shall result in a waiver of defenses to the claim

2026 NY Slip Op 06369, at the official text

The mandatory nature of th[e pertinent rule's] language contrasts with the language used in the Board's other rules

2026 NY Slip Op 06369, at the official text

The absence of prejudice to claimant also will not excuse the carrier's failure to serve claimant's counsel

2026 NY Slip Op 06369, at the official text

no such affidavit was provided

2026 NY Slip Op 06369, at the official text

we see no reason to disturb the Board's finding that the carrier's defenses were waived

2026 NY Slip Op 06369, at the official text