By: Leonardo Lampret, Associate Attorney
New York Workers’ Compensation Board has proposed a significant rule change governing the right to cross-examine medical providers. Under the proposal, the long-standing expectation that a party is entitled to cross-examination of a claimant’s attending medical provider would be substantially narrowed. Instead of being mandatory, cross-examination would become discretionary, subject solely to the Judge’s determination, provided the Judge places a reason for the denial on the record.
1) What the Proposed Rule Does
The proposed rule eliminates the requirement of a mandatory adjournment for the purpose of cross-examining a claimant’s attending medical provider that LOMAD had to fight in front of the New York State Court of Appeals in matter of Lazalee v. Wegmans Food Mkts. Inc.. The Judge would now be permitted to deny cross-examination where the denial is deemed nonprejudicial, and where the requested testimony would be duplicative, superfluous, or dilatory.
According to the proposed rule, the intent behind the rule is to promote efficiency and reduce unnecessary delay. The Board has emphasized the need for “intentional, sensible use of medical witness depositions” and has cited its obligation to resolve contested matters in a timely fashion. From the Board’s perspective, this change would allow the Judge to decide cases more quickly when the evidentiary record is already sufficient, without adjournments that prolong litigation and delay benefits to injured workers or certainty to employers.
In support of this rationale, the Board points to prior Appellate Division decisions holding that where there is no “viable difference in the expert opinions expressed in the medical records,” a party suffers no prejudice from the denial of cross-examination of a medical expert. Under this view, cross-examination is not an absolute right, but a procedural tool that may be curtailed when it serves no meaningful purpose.
2) The Practical Impact on Carriers and Self-Insured Employers
While administrative efficiency is a legitimate goal, the proposed rule raises serious concerns for carriers and self-insured employers—particularly with respect to due process and the ability to meaningfully investigate and defend claims.
Carriers already operate under significant constraints in workers’ compensation proceedings. Discovery is limited, investigative tools are narrow, and evidentiary rules are relaxed in favor of expediency. Cross-examination of medical providers has long been one of the few meaningful mechanisms available to test the credibility, foundation, and accuracy of medical opinions that often determine the outcome of a claim.
The proposal hinges on the idea that denial of cross-examination must be “nonprejudicial.” Yet the rule offers no meaningful guidance as to how prejudice is to be evaluated, nor does it provide examples of circumstances where denial would or would not be appropriate. Instead, the determination is left entirely to the discretion of the individual WCLJ.
This creates a fundamental problem: prejudice is often not apparent on the face of the medical report.
For example, it is not uncommon for an IME to concede causal relationship, degree of disability, or medical necessity based on a claimant’s reported history or mechanism of injury. If that history is inaccurate, incomplete, or outright misrepresented, the IME’s opinion may be fundamentally flawed—yet appear facially consistent with other medical evidence in the file.
Under the proposed rule, would a carrier be permitted to cross-examine the medical provider to explore whether the opinion was based on an inaccurate mechanism of injury? Possibly. Or possibly not. The rule provides no answer.
3) Unpredictability and Inconsistent Application
By offering only the vague standard that denial must be “nonprejudicial,” the proposed rule invites inconsistent application across Judges and hearing points. One Judge may routinely permit cross-examination in close cases, while another may deny it whenever medical reports appear aligned on paper.
Without Board-level guidance, examples, or interpretive standards, parties are left guessing as to when a fundamental litigation right will be granted or denied. This lack of predictability undermines confidence in the process and makes it exceedingly difficult for carriers and employers to assess litigation risk or plan an effective defense.
Ironically, a rule intended to streamline litigation may achieve the opposite result.
4) A Rule Likely to Generate More Appeals
The absence of clear standards is likely to result in increased appeals, not less, unless the Board comes out with clear guidance. Denials of cross-examination will inevitably be challenged as prejudicial, particularly where subsequent findings hinge on medical opinions that were never tested through testimony.
The Appellate Division has held that denial of cross-examination is permissible where there is no viable difference in expert opinions – but that determination is often nuanced and fact-specific. Without a developed record created through testimony, parties are left to speculate as to what cross-examination might have revealed, increasing the likelihood of remands and reversals.
Conclusion: Efficiency Versus Fairness
The theory behind the proposed rule—promoting efficiency and reducing unnecessary delay—is understandable. However, theory and practice are not the same. In practice, this rule risks sacrificing due process in the name of expediency, particularly for carriers and self-insured employers who already face limited procedural protections.
Cross-examination is not a mere formality; it is a core component of adversarial fairness. By placing its availability entirely within a Judge’s discretion, without meaningful guidance or standards, the proposed rule introduces uncertainty, inconsistency, and potential injustice into an already constrained system.
Whether this rule ultimately improves the workers’ compensation process or undermines it will depend entirely on how it is enforced. Only practice will tell—but by then, the damage to predictability and due process may already be done.