Dear Client,
On Jan. 21, 2026, the New York Workers’ Compensation Board (The Board) issued proposed changes to its regulations governing medical depositions. These proposed changes are currently open for public comment at regulations@wcb.ny.gov through March 22, 2026.
While many of the proposed changes formalize existing practice, several provisions will meaningfully impact litigation strategy, evidentiary expectations and how medical disputes are evaluated by Workers’ Compensation Law Judges.
To help you navigate these proposed changes, we have compiled a summary below, followed by insights from Jones Jones LLC for employers, carriers, third party administrators (TPAs) and self-insureds to consider.
The Changes:
12 NYCRR §300.10(c) – Adjournments for Medical Cross-Examination
- Law Judges may, but are not required to, grant adjournments, or temporary postponements, to produce a treating physician for cross-examination.
- Any denial of an adjournment by the law judge must be explained on the record.
- Additional adjournments may only be called if the law judge finds sufficient excuse for the physician’s original non-appearance and are conditioned on subpoena use.
- If the physician ultimately does not appear, the case will generally proceed on the existing record absent extraordinary circumstances.
- Responsibility for enforcing subpoenas rests squarely with the employer/carrier.
12 NYCRR §300.10(e) – Responsibility for Depositions (New Section)
- Regardless of which party requests a deposition, the employer/carrier is responsible for:
- Securing the medical witness
- Issuing subpoenas if necessary
- Retaining and paying the stenographer
- Filing and serving deposition transcripts
- Bearing all deposition-related costs
In practice, this largely reflects what defense counsel already does, but it formally allocates responsibility in the regulations. We urge all clients to review their current deposition process to assess and adjust for any cost increases.
12 NYCRR §300.10(f) – Extensions for Deposition Transcripts (New Section)
- Extensions must be requested in writing, on or before the deadline, and in a Board-prescribed format.
This appears to be the current common practice among stakeholders as it stands now.
12 NYCRR §§301.1 and 301.3 – Medical Witness Fees
- Deposition fees for physicians and other medical providers will increase significantly, particularly if not paid within 45 days.
- Unpaid fees accrue interest in the same manner as unpaid medical bills.
- These provisions heighten the importance of timely payment and accurate fee processing.
What Jones Jones Clients Should Consider
While the proposed changes do not dramatically shift who performs deposition logistics, if passed, these changes will alter the litigation environment for medical disputes. Some key insights employers, carriers, third party administrators (TPAs) and self-insureds should consider include:
- Increased Strategic Importance of Cross-Examination: Judges may feel more comfortable proceeding on the existing record when treating physicians are not available. As a result, defense counsel will need to make more deliberate, earlier decisions about when cross-examination of treating providers is necessary—and be prepared to explain those decisions on the record.
- Independent Medical Examination (IME) Quality Will Matter More: Independent medical examinations (IMEs) will increasingly need to stand on their own when treating doctors are not cross examined. Reports should be thorough, well-reasoned and directly address treating opinions, causation and credibility. Conclusory or formulaic IMEs will be more vulnerable under this framework.
- Greater Scrutiny of Unrebutted Treating Opinions:Where no cross-examination occurs, there is a heightened risk unrebutted treating opinions will carry more weight. This places increased pressure on the defense to ensure the evidentiary record is sufficiently developed.
- Consistency in Judicial Application Will Be Critical:The proposed rules create discretion for judges. Predictability and fairness will depend on consistent application, particularly regarding when cross-examination is expected and when IME evidence alone is sufficient.
How Jones Jones can Help
If you are in need of assistance in drafting a response, please contact us at concierge@jonesjones.com and an attorney will be in touch to coordinate draft comments on your behalf.
For more information on the proposed changes, please visit the Board’s webpage. If you have additional questions about how these proposed changes may impact you, please contact us at concierge@jonesjones.com.
