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Drafting a Fact Witness Deposition Hearing

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Workers’ Compensation

Newsletter

E-

mail

a

lErts

Workers’ Compensation Practice Group

WORKERS’ COMPENSATION APPEALS BOARD

PROPOSES RULE CHANGES

By: Elizabeth M. Murphy, Esq. Email: emurphy@devinemillimet.com Phone: 603.695.8560

N

ovEmbEr

23, 2010

The Workers’ Compensation Appeals Board has proposed amendments to the Labor rules, which regulate the appeal hearing process. A public hearing to discuss the proposed amendments will be held on November 29, 2010 at 2:00 p.m. at the Department of Labor, 95 Pleasant Street, Concord, NH 03301. The Department of Labor will accept written and electronic

comments until December 15, 2010. Written and e-mailed comments can be directed to Attorney Martin Jenkins, 95 Pleasant Street, Concord, NH 03301; (mjenkins@labor.state.nh.us).

The most significant proposal is an effort to bar the submission of deposition

testimony of a non-medical fact witness unless a pre-hearing panel grants permission ahead of time. The proposal would amend Lab 205.04,

Depositions. Parties seeking to take the deposition of a non-medical witness would be required to submit a “Notice to take Deposition of a Non-Medical Witness” at least ten (10) days prior to the pre-hearing conference. The deposition testimony will only be admitted at the appeal hearing if the pre-hearing panel grants permission. Under certain circumstances, as set forth in the amendment, the pre-hearing panel would be required to grant permission.

Specifically, if the panel finds: (1) that due to illness or injury, it is not possible

for the witness to appear in person at the hearing; (2) that the witness cannot be subpoenaed to appear under normal procedures as set out in RSA 516; (3) the postponement or delay of the hearing, because of illness, injury or because a witness cannot be subpoenaed, would be prejudicial to one or both parties; or (4) that there is other good cause for the pre-hearing panel to allow the deposition of a non-medical witness. The amendment would further specify that the panel conducting the appeal hearing shall be provided with

Paul Salafia, Chair 603.695.8749 psalafia@devinemillimet.com Eric Falkenham 603.695.8746 efalkenham@devinemillimet.com Charles Giacopelli 603.695.8752 cgiacopelli@devinemillimet.com Paul Kfoury, Jr. 603.695.8733 pkfoury@devinemillimet.com James O’Sullivan 603.695.8699 josullivan@devinemillimet.com Elizabeth Murphy 603.695.8560 emurphy@devinemillimet.com

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Office Locations: 111 Amherst Street Manchester, NH 03101 T 603.669.1000 F 603.669.8547 300 Brickstone Square Andover, MA 01810 T 978.475.9100 F 978.470.0618 43 North Main Street Concord, NH 03301 T 603.226.1000 F 603.226.1001 parties from reaching an agreement on their own that a deposition should be

taken and submitted for the Board’s consideration. Likewise, the decision to request a fact witness deposition would need to be made in advance of a pre-hearing conference. If unforeseen circumstances should arise, requiring a non-medical witness deposition, the parties would probably need to

request a second pre-hearing conference to address the issue. It is unclear how the rule would affect the use of discovery depositions for impeachment purposes.

Other proposed amendments also clarify the rules with respect to witness lists for appeal hearings. An amendment to Lab 205.03(b)(4) Procedures Prior to Appeal Hearing would require that the scheduling statement provide:

“A preliminary listing of all witnesses to be called.” Similarly, an amendment to Lab 205.06 (b) (2) Prehearing Conference would state that “All parties

shall provide a final list of witnesses to the board and other parties that they

intend to call to the appeal hearing at least 7 business days prior to the date of the hearing.”

An amendment to Lab 206.02 Motion for Rehearing would specify that any

decision issued by the panel would be subject to a Motion for Rehearing and, by implication, an appeal to the Supreme Court. It would not be necessary

to await a final hearing decision before filing a Motion for Rehearing.

Lastly, an amendment to Lab 207.02 Award for Fees and Interest at Compensation Appeals Board Hearings would clarify that the claimant’s

attorney may file for “costs.” The amendment is consistent with RSA 281-A:44. The amendment would further specify that “costs” would include

professional language interpreters.

If you have any comments or questions regarding the proposed

amendments, please contact one of our workers’ compensation attorneys: Paul Salafia (psalafia@devinemillimet.com), Eric Falkenham (efalkenham@ devinemillimet.com), Charles Giacopelli (cgiacopelli@devinemillimet.

com), Paul Kfoury, Jr. (pkfoury@devinemillimet.com), James O’Sullivan (josullivan@devinemillimet.com), or Elizabeth Murphy (emurphy@ devinemillimet.com).

The Devine, Millimet & Branch Workers’ Compensation Group offers this free E-Mail Alert service to provide information on recent developments in workers’ compensation law. If you have any questions about this e-mail, or if you know of anyone else who may be interested in receiving these alerts, please send us

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