For NY Board's Form RB-89, Question 15's "When" Did Not Mean a Specific Date

New York practitioners are aware that when a party seeks review of a WCLJ's findings, the state's Workers' Compensation Board has become quite strict in its examination of a party's Form RB-89 (Application for Board Review). Acknowledging that the form "must be filled out completely," a state appellate court held nevertheless that the Board had abused its discretion when it denied a carrier's Application for Board Review on the basis that the RB-89 was incomplete based upon the Board's determination that the carrier's response to question number 15 failed to specify the date of the hearing at which the carrier interposed its objection or exception to the WCLJ's ruling [Matter of Mone v. Deer Park Sand & Gravel Corp., 2020 N.Y. App. Div. LEXIS 2300 (3d Dept. Apr. 9, 2020)]. The amendment to the rule requiring a specific date in the answer to question 15 did not occur until November 2018, after the carrier had filed its application for review.

Background

Following a May 25, 2018 hearing, the WCLJ concluded that claimant had sustained work-related injuries, set claimant's AWW and made certain temporary total disability and tentative awards. The employer, its workers' compensation carrier and the third-party administrator ("the carrier") noted an exception to the WCLJ's findings, including whether any injury was sustained during the course of claimant's employment. A written decision reflecting the WCLJ's findings was then issued on May 31, 2018.

The carrier filed an application for review (Form RB-89), maintaining that claimant's injuries were not sustained in the course of his employment. The Board determined that the carrier's application was incomplete with regard to question number 15, in that the carrier failed to specify the date of the hearing at which it had interposed the objection or exception to the WCLJ's ruling. Consequently, the Board denied the application, and the carrier appealed.

RB-89 Must Be Filed Out "Completely"

The appellate court initially acknowledged that under 12 NYCRR 300.13[b][1], the RB-89 had to be filled out completely and "pursuant to the instructions for each form." The court indicated that as relevant here, in order to provide a complete response to question number 15, the carrier was required to "specify the objection or exception that was interposed to the [WCLJ's] ruling, and when the objection or exception was interposed" [Opinion p. 3, emphasis by the Court].

At Time of Application, Instructions Said "When"

The Court observed that at the time the carrier submitted its application for review in June 2018, the regulation (12 NYCRR 300.13[b][1]) only required the applicant to state, as pertinent here, "when" the objection or exception was interposed; it did not then require that a date be specified. The Board amended the rule in November 2018, removing the somewhat nebulous "when," and replacing it with the requirement that the specific date be indicated.

The Court continued that given that the carrier's response to question number 15 provided temporal information, and in the absence of any finding by the Board that there were multiple hearings, the Board's denial of the carrier's application for Board review on the ground it was incomplete — solely because it did not list a date of the hearing — was an abuse of discretion.

Commentary

One might have thought the Board would not need to be told that when it examines whether an Application for Board Review meets the standards specified in its rules, that it should use the language of the rule in force at the time of the Application.