State Court Strikes Down New York Board’s Eight-Page Brief Limitation
A regulation of New York’s Workers’ Compensation Board [N.Y. Comp. Codes R. & Regs., tit. 12, § 300.13(b)(1)(i)] that authorizes the Board to dismiss an application for Board review where a brief longer than eight pages is submitted without an adequate explanation is unreasonable, held a state appellate court yesterday [Matter of Daniels v. City of Rochester, 2019 N.Y. App. Div. LEXIS 8944 (3d Dept., Dec. 12, 2019)]. The court observed that the rule lacked a “safety valve” that would allow an applicant to seek permission to file a lengthier brief without jeopardizing the ability to submit a legal analysis supportive of the application for Board review.
Background
Following a November 2016 hearing, a Workers’ Compensation Law Judge (WCLJ) ruled that a self-insured employer and its TPA were required to continue benefits to a claimant. The employer then sought review of that decision by the Board and attached a 10-page brief outlining the issues to be addressed to the its RB-89 form. A Board panel denied the employer’s application, finding that the employer’s explanation for submitting a legal brief in excess of the eight pages allowed by N.Y. Comp. Codes R. & Regs., tit. 12, § 300.13(b)(1)(i) was insufficient. The employer simultaneously appealed to the appellate division and sought reconsideration and/or full Board review. By amended decision, the Board again denied the employer’s application for review based upon the employer’s noncompliance with the brief pagination rule.
Board Says “Cursory Referral to Complexity of Issues Was Insufficient Justification
N.Y. Comp. Codes R. & Regs., tit. 12, § 300.13(b)(1)(i) permits the appealing party to attach to the application for Board review “a legal brief of up to eight pages in length” — subject to certain formatting requirements — and expressly provides that “[a] brief longer than eight pages will not be considered, unless the appellant specifies, in writing, why the legal argument could not have been made within eight pages.” In the instant case, the employer submitted a 10-page legal brief, explaining that its failure to comply with the foregoing page limit was “[d]ue to the complexity of the Board [p]anel precedent and other case law/statutes governing the issue raised in Point II” of the brief (emphasis omitted). The Board deemed this “cursory referral to the ‘complexity’ of issues” to be an insufficient reason for exceeding the page limit — noting that the employer’s brief was made “needlessly lengthy” by providing lengthy quotations from prior Board decisions. As a consequence, the Board summarily denied the employer’s application for review without addressing the merits.
Board is Generally Authorized to Set Page Limits
The appellate court initially noted that the Board had broad discretion in the adoption of reasonable rules governing the content and formatting of an application (form RB-89) for Board review of a decision by a WCLJ and that a failure to comply could result in the denial of the application. The court cited a number of recent cases in which such failures had been fatal to applications for review. The court recognized that the Board was authorized to to impose page limitations on legal briefs within reason. The court specifically stated that it took no issue with an eight-page limitation as a starting point. The court added that it was certainly within reason for the Board to require an applicant proposing to submit a brief longer than eight pages, but no more than 15 pages, to specify, in writing, why the legal argument could not have been made within eight pages.
No Standard as to What Board Considers “Adequate”
The problem, said the appellate court, was that there was no defined standard as to what explanation the Board would consider adequate. Worse, said the court, the regulation, by its express terms, did not authorize the Board to dismiss an application for Board review where a brief longer than eight pages was submitted without an adequate explanation. In such an instance, the regulation simply specified that the brief would not be considered. The court stressed, however, that briefs were not required in the first place.
Accordingly, the court found the Board had acted arbitrarily in dismissing the employer’s application for Board review. The court said it would not be reasonable in the first instance for the Board to reject an oversized brief outright, “for to do so would undermine the role of counsel” [Opinion, p. 4]. The regulation was flawed since there was simply no safety valve that would allow an applicant to seek permission to file a lengthier brief without jeopardizing the ability to submit a legal analysis supportive of the application for Board review. The matter was remitted for further proceedings.