N.Y. Comp. Codes R. & Regs. tit. 12 § 300.20

Current through Register Vol. 46, No. 45, November 2, 2024

Section 300.20 - Proof of facts of existence, relationship and dependency under section 121-a of the workers' compensation law

(a) If in any claim where the questions of dependency, relationship and present existence are at issue, the persons claiming relation to or dependency upon a decedent employee under sections 16 and 17 of the Workers' Compensation Law cannot for good and sufficient reason appear before and be examined by a diplomatic or consular officer of the United States, as provided by section 121-a of the Workers' Compensation Law the board may require that such claimants appear before a person designated by it and that proofs on the questions at issue be submitted to such designated person as hereinafter provided. The parties in interest may by agreement or stipulation designate the person before whom such claimants are to appear and submit to examination, in which case the parties shall notify the board of such designation on a form prescribed by the chairman. In the absence of such agreement or stipulation and on application of any party in interest the board shall designate the person before whom appearance is to be made and testimony taken. The board shall send notice of the designation to the person designated. No person who has any interest in the claim or is related to any party in interest shall be so designated.

(b) The testimony of any person required to be examined and to appear before a diplomatic or consular officer of the United States or a designated person may be given wholly or partly in oral examination, be taken wholly or partly in written interrogatories, or by taking the deposition of such person. Where testimony is given orally before such officer or designated person, he shall make or cause to be made a full and complete record of the proceedings. Where oral examination is provided, the parties may be represented. Any adverse party may cross-examine such person required to appear and be examined, and shall have the right to so examine as to any oral testimony given even if the examination is partly by written interrogatories and such party has failed to file cross-interrogatories. All questions regarding the admissibility of evidence in connection with an examination by such officer or designated person may be raised at any hearing before the board and shall be determined by the board.

(c) The fees for services rendered and the actual and necessary expenses, disbursements or cost of the officer or person so designated shall be paid by the party making the application in an amount approved by the board, unless the officer or person so designated has waived the payment of the whole or any part thereof, or the parties have by agreement stipulated the amount and manner of such payment.

(d) The notice sent by the board to such designated person, copies of which shall be furnished to the parties in interest, shall contain the following:

(1) the name and address of such designated person;

(2) the time, place or location where such examination is to be held;

(3) the name and address of the person to be examined or such description of an unnamed person as to clearly and definitely disclose his identity;

(4) the subject matter about which such person is to be examined;

(5) there shall also be sent a copy of this section and any interrogatories or cross-interrogatories to be propounded.

(e) The officer or designated person shall administer an oath to all persons before they testify or submit evidence.

(f) If written interrogatories are the method selected and agreed upon by the parties, and stipulation to such effect is filed with the board, or interrogatories are directed by the board, they may be settled by consent of the parties. When so settled, a signed stipulation with copies of such interrogatories, each in duplicate, shall be promptly sent to the board, which shall promptly issue an order under the seal of the board to the person selected in the manner aforesaid directing the taking of testimony on such interrogatories. If they are not so settled, the interrogatories and cross-interrogatories shall be settled as follows:

(1) the interrogatories shall be served within 10 days after the date of agreement and stipulation by the parties to use interrogatories as the method or, after the date the board has directed the use of such method;

(2) cross-interrogatories shall be served within 10 days after the service of the interrogatories, unless a different time is set by stipulation of the parties, or the board on application of a party has extended such time and fixed a reasonable time.

If a party shall fail to serve cross-interrogatories within the time limited above therefor, he shall be deemed to have waived his right to proposed cross-interrogatories to the person whose deposition is to be taken. Either party within 10 days after the service of cross-interrogatories, or within two days after the time to serve cross-interrogatories has expired, may apply to the board for settlement of the interrogatories. In the absence of such application, the interrogatories and cross-interrogatories are to be deemed settled as served.

(g) The person before whom testimony is taken shall comply with the following directions:

(1) If an exhibit is produced and proved, he shall annex to the deposition the exhibit, or a copy thereof if the original is not surrendered, subscribed by the witness proving it, and numbered or otherwise identified in writing thereon by the officer or person taking the deposition, who must subscribe his name thereto.

(2) He shall subscribe his name to each single sheet of the deposition.

(3) He shall annex to the deposition the papers authorizing him to proceed.

(4) He shall annex to each deposition his certificate setting forth that the witness was duly sworn, and that the deposition was duly taken and is a true record of the testimony of the witness and of all questions and answers required to be inserted, that the signature of the witness to the deposition and any exhibit or copy attached thereto is genuine; a statement of all appearances by the parties and attorneys.

(5) On the completion of the examination, he shall inclose in a single packet, securely sealed, the deposition or depositions and all papers required to be annexed thereto.

(6) If the notice, stipulation or order contains a direction to return the deposition by mail, or if there is no direction as to the manner of the return, he must immediately deposit the packet in the post office, postage prepaid, and addressed to the Workers' Compensation Board, New York City, with whom it is required to be filed.

(7) If the packet be transmitted through the post office, the clerk receiving it from the post office shall open it, indorse thereon his name and sign a note of the time of the receipt and opening thereof, and immediately file it in the case folder.

(h) If a deposition has been improperly or irregularly taken or returned, or if either party or his representative has practiced any fraud or unfair conduct in respect to such deposition, the board, upon application of the party aggrieved and notice thereof to the adverse party, may make an order for the suppression of the deposition.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.20