Herrera v. Tempo Carpentry LLC: Strict Waiver of Absent Witnesses in Expedited Workers’ Compensation Hearings Without a Specific Good-Cause Showing

Introduction

In Matter of Herrera v. Tempo Carpentry LLC, 2025 NY Slip Op 05556 (App Div 3d Dept Oct. 9, 2025), the Third Department affirmed a Workers’ Compensation Board decision establishing multiple causally-related injuries for claimant Jekson Herrera arising from an alleged ladder fall at work. The decision has two principal holdings:

Procedurally, it underscores the strict enforcement of the expedited hearing regime for controverted workers’ compensation claims under Workers’ Compensation Law § 25(3)(d) and 12 NYCRR 300.38. When a party’s witness does not appear, the right to that testimony is waived unless the party makes a specific, timely showing of good cause and due diligence. Last-minute, nonspecific assertions of unavailability—such as “the foreperson is traveling”—are insufficient.
Substantively, it reaffirms the highly deferential “substantial evidence” standard and the Board’s broad authority to resolve credibility disputes and pick among conflicting medical opinions when determining causal relationship and the extent of compensable injuries.

The employer and carrier (collectively, the “carrier”) challenged both the Workers’ Compensation Law Judge’s (WCLJ) refusal to adjourn an expedited hearing to accommodate a foreperson’s testimony and the Board’s causal-relationship determinations in favor of Herrera. The Third Department, per Pritzker, J.P., affirmed in all respects.

Summary of the Opinion

The court held that the WCLJ did not abuse discretion by denying the carrier’s eleventh-hour request to adjourn an expedited hearing to present a foreperson’s testimony. Citing 12 NYCRR 300.38(h)(1)(ii), the court emphasized that a party waives a non-appearing witness absent a showing of “good cause” coupled with “good faith and due diligence.” Despite having 74 days between scheduling and the hearing date, the carrier provided no details regarding the reason or timing of the witness’s travel and made the request only two days before the hearing. In light of the expedited framework’s strict timelines, preclusion was proper.

On the merits, substantial evidence supported the Board’s establishment of injuries to Herrera’s neck, back, right shoulder, right elbow, right hip, and right knee as causally related to the August 23, 2022 work accident. The Board was entitled to credit the claimant’s hearing testimony and the causation opinions of treating physicians over the carrier’s independent medical examiner (IME), even though some early reports reflected inconsistencies (e.g., left vs. right shoulder; “tripping over a tool” vs. “fall from a ladder”). The court thus affirmed the Board’s determinations without costs.

Analysis

Precedents and Authorities Cited

Workers’ Compensation Law § 25(3)(d): Provides for expedited resolution of controverted claims. The statutory goal is speed and finality, which informs strict enforcement of scheduling and evidentiary rules in the “special part.”
12 NYCRR 300.38(h)(1)(ii): In expedited hearings, a party that fails to produce a listed witness “shall have waived the right” to that testimony unless it demonstrates good cause for the absence and shows good faith and due diligence.
12 NYCRR 300.34; 12 NYCRR 300.38(h): Regulatory framework supporting expedited procedures and enforcement mechanisms in controverted claims.
Matter of Cartafalsa v Zurich American Ins. Co., 175 AD3d 1762 (3d Dept 2019): Recognizes that the expedited process “necessitates” resolution within a set time frame; supports strict adherence to scheduling and concomitant discretion to preclude late or absent proof.
Matter of Gaspard v Queens Party Hall Inc., 189 AD3d 1880 (3d Dept 2020); Matter of Galdon v Robert Basil Inc., 213 AD3d 1063 (3d Dept 2023): Restate that whether a compensable accident occurred is a factual question for the Board, reviewed for substantial evidence.
Matter of Minichino v Amazon.com DEDC LLC, 204 AD3d 1289 (3d Dept 2022); Matter of Pierre v ABF Freight, 211 AD3d 1284 (3d Dept 2022): Clarify claimant’s burden to prove the accident arose out of and in the course of employment, with competent medical evidence of causal connection.
Matter of Arce v Shear Construction, LLC, 232 AD3d 1022 (3d Dept 2024); Matter of Bonitto v Vivid Mechanical LLC, 231 AD3d 1222 (3d Dept 2024): Emphasize the Board’s broad authority over credibility and factual inferences.
Matter of Brennan v Village of Johnson City, 213 AD3d 1058 (3d Dept 2023); Matter of Brown v Laboratory Corp. of America, 222 AD3d 1127 (3d Dept 2023): The Board may resolve conflicting medical opinions; courts defer if substantial evidence supports the Board’s choice.
Matter of Aungst v Family Dollar, 221 AD3d 1222 (3d Dept 2023), lv granted 41 NY3d 908 (2024): Illustrates continued deference to the Board on factual determinations and medical conflicts; leave granted signals possible future clarification by the Court of Appeals, but the Third Department’s framework remains controlling.
Matter of Burgos v Citywide Central Insurance Program, 148 AD3d 1493 (3d Dept 2017), aff’d 30 NY3d 990 (2017): A foundational substantial-evidence case affirming the Board’s primacy in weighing evidence, with the Court of Appeals’ affirmance underscoring the deference owed.

Legal Reasoning

1) Procedural Holding: Enforcing the Expedited Hearing Waiver Rule

The court applied 12 NYCRR 300.38(h)(1)(ii) to a straightforward set of facts. The WCLJ scheduled an expedited hearing for June 30, 2023, with 74 days’ advance notice. The carrier announced its intent to call the claimant’s foreperson but requested, two days before the hearing, an adjournment because the witness would be “leaving on a trip” and unavailable. Crucially, the request lacked specifics: it did not explain the reason for travel, when the travel was scheduled, whether the conflict arose unexpectedly, or what steps were taken earlier to secure attendance or preserve testimony.

Given the expedited regime’s purpose—efficient resolution of controverted claims—the WCLJ concluded that good cause and diligence were not shown. The Third Department agreed, emphasizing that the obligation to demonstrate “good cause,” “good faith,” and “due diligence” requires concrete facts and a timely record. In light of the ample lead time and the sparse, last-minute submission, preclusion fell comfortably within the WCLJ’s discretion. The court’s reliance on Cartafalsa confirms that the “necessity” of timely disposition justifies rigorous enforcement of waivers in the expedited part.

2) Substantive Holding: Substantial Evidence Supports Causally-Related Injuries

On causation and compensability, the court applied settled standards:

The claimant bears the burden to show the accident arose out of and in the course of employment, supported by competent medical evidence of causal connection.
The Board is the arbiter of credibility and may choose among conflicting medical opinions.
Judicial review is limited; the determination stands if supported by substantial evidence, even where the record could support a contrary finding.

Herrera testified that he fell from a ladder while installing sheetrock and immediately reported to an on-site medic, after which he sought hospital care and followed up with specialists. Treating pain specialist Dr. Ari Lerner and orthopedist Dr. Steven Touliopoulos diagnosed multiple injuries (including right shoulder pathology such as partial rotator cuff tear, SLAP and Bankart lesions with instability, impingement; and sprains or contusions to the right elbow, hip, and knee) and opined that those injuries were caused by the workplace fall. While the carrier’s IME, Dr. John Killian, rejected causation—relying heavily on early documentation suggesting a left-shoulder injury from tripping over a tool—the Board credited Herrera’s sworn hearing testimony and the treating physicians’ opinions.

The record contained conflicting accounts (left vs. right shoulder; trip vs. ladder fall), but the Board considered those inconsistencies and nonetheless found Herrera credible. The court reiterated that such credibility assessments—and the weighing of MRI significance and other medical proof—fall squarely within the Board’s purview. Substantial evidence thus supported establishing injuries to the neck, back, right shoulder, right elbow, right hip, and right knee. Notably, although the original C‑3 form listed a right ankle injury but not the right knee, the Board accepted Dr. Touliopoulos’s explanation that radicular symptoms from a back injury could initially mask a knee injury; the omission on the C-3 did not defeat causation where medical evidence supported the knee injury.

Impact and Practical Implications

Expedited Hearings: A Clear Compliance Roadmap

Specificity is essential for “good cause.” Vague, last-minute assertions of unavailability (e.g., generic “travel”) will not suffice. Parties should provide details (reason for absence, timing, when the conflict arose, and why it could not be avoided) and document efforts to secure attendance or alternatives.
Due diligence must be demonstrable. With 74 days’ notice here, the absence of proactive steps doomed the request. Counsel should calendar early, confirm witness availability in writing, issue subpoenas where appropriate, and consider contingency plans.
Consider alternative preservation methods. Although not discussed in the opinion, practitioners in expedited parts should anticipate conflicts and seek timely alternatives such as sworn statements, preserving testimony where permitted, or arranging remote testimony consistent with Board procedures.
Expect strict enforcement in the special part. Herrera signals that WCLJs have, and will exercise, discretion to keep expedited cases on track; waiver is the default when a witness does not appear absent a granular showing under 12 NYCRR 300.38(h)(1)(ii).

Substantial Evidence and Credibility: Deference Reaffirmed

Early inconsistencies are not necessarily fatal. Discrepancies in initial incident reports and triage notes (e.g., laterality of an injury) can be weighed and explained, particularly where subsequent medical records and sworn testimony are consistent.
Treating vs. IME conflicts remain the Board’s call. The Board may credit treating physicians’ causation opinions over an IME’s contrary view, including conflicting interpretations of MRI findings.
Additional sites can be established despite initial omissions. The acceptance of the right knee injury—despite its absence on the C‑3—illustrates that the Board can establish additional body sites supported by the medical record.

Complex Concepts Simplified

Expedited hearing (WCL § 25(3)(d); 12 NYCRR 300.38): A fast-track process for controverted claims designed to reach a final decision quickly. It imposes tight deadlines and strict evidentiary controls, including witness-appearance requirements and waiver rules.
Waiver of a non-appearing witness (12 NYCRR 300.38(h)(1)(ii)): If your witness does not show up, you lose the right to their testimony unless you convincingly prove both good cause for the absence and that you acted with good faith and due diligence to secure their attendance.
Abuse of discretion: A deferential standard used on procedural rulings (like adjournments). A court will not second-guess a judge’s case-management decision unless it falls outside the range of reasonable choices.
Substantial evidence: A modest evidentiary threshold. It means enough relevant proof that a reasonable person could accept as adequate—not necessarily the most or best evidence, and not a preponderance.
Causal relationship: In workers’ compensation, the injury must arise out of and in the course of employment. Competent medical evidence must link the accident to the diagnosed injuries.
Credibility determinations: The Board decides whom to believe (e.g., claimant vs. IME) and how to interpret conflicting records; appellate courts generally do not disturb those choices if there is substantial evidence to support them.
Common shoulder pathology terms:
- SLAP lesion: A tear at the top of the shoulder’s labrum.
- Bankart lesion: A tear at the front-lower portion of the labrum, often linked to dislocations and instability.
- Impingement syndrome: Pinching of rotator cuff tendons/structures during arm movement, causing pain or dysfunction.

Conclusion

Herrera v. Tempo Carpentry LLC delivers a clear procedural message: in the expedited workers’ compensation special part, a party that fails to produce a witness without a concrete, well-documented, and timely showing of good cause and due diligence will be deemed to have waived that testimony. The Third Department’s endorsement of preclusion here—where the carrier had 74 days’ notice and offered only a last-minute, nonspecific travel assertion—confirms that WCLJs have wide latitude to keep expedited cases on schedule.

On the merits, the decision is a robust reaffirmation of deference to the Board’s credibility findings and choice among conflicting medical opinions. Even with early inconsistencies in the accident narrative, substantial evidence—anchored in treating physicians’ diagnoses and causation opinions—supported the establishment of injuries to the neck, back, right shoulder, right elbow, right hip, and right knee as arising from the workplace fall.

Key takeaways include: plan early and document thoroughly for expedited hearings; be prepared with specific facts to justify any adjournment; recognize that initial reporting discrepancies can be overcome by credible hearing testimony and consistent medical evidence; and understand that appellate review remains limited where the Board’s determinations are supported by substantial evidence. Herrera thus strengthens the predictability of expedited workers’ compensation litigation and underscores the premium placed on diligent preparation and credible medical proof.