NY Carrier Fails to Notify its Attorney of Claimant’s Application for Board Review and Loses Appeal
Illustrating what can happen when a workers' compensation carrier fails to notify its counsel of the carrier's receipt of important papers concerning a claim, a New York appellate court affirmed the state Board's determination that a worker was entitled to workers' compensation benefits for a claimed repetitive injury to claimant's back where the injured worker was unsuccessful at the WCLJ level, then filed an application for Board review, and served the carrier, but not the carrier's counsel [Matter of Muller v Square Deal Machining, Inc., 2020 N.Y. App. Div. LEXIS 2838 (3d Dept. May 7, 2020)]. The New York rule did not require service on counsel under the facts of the case and the appellate court held the New York rule was neither arbitrary nor capricious.
Background
Beginning in March 2014, Claimant worked for the employer as a saw operator, a job that required him to cut and stack 30,000 to 50,000 of steel per day. Each piece of steel weighed between 50 and 60 pounds. In September 2017, Claimant sought workers' compensation benefits, claiming he had sustained injuries to his back, stomach and legs resulting from the repetitive heavy lifting and pulling of the steel. A WCLJ disallowed the claim, finding that Claimant's back condition was symptomatic prior to commencing work for the employer and that there was no evidence to support that his condition was the result of his work for the employer.
Claimant Seeks Board Review, Serves Carrier, But Not its Counsel
Claimant filed an application for Board review and, in accordance with the notice requirements of 12 NYCRR 300.13, Claimant provided notice to the employer and its workers' compensation carrier, but not to the carrier's attorney. The carrier apparently failed to inform its attorney of the WCLJ's decision and of claimant's application and, thus, did not participate in the Board's review of the WCLJ's decision. The Board reversed the WCLJ's decision, established the claim for an occupational disease involving repetitive trauma, and noted in its decision that the carrier did not file a rebuttal.
Carrier's Argument: Right to Counsel Had Been Impinged
The carrier's sole argument on appeal is that the Board's rule permitting claimant to fail to serve its attorney with notice of his application for Board review — although requiring service upon the carrier — impinged upon its right to counsel and, thus, was unconstitutional, unreasonable, arbitrary, capricious and without a rational basis. The appellate court noted that the carrier had not brought that issue up for consideration before the Board but, as the court also noted, no one had appeared before the Board to do so, since it had not notified its attorney of the claimant's intention to seek Board review.
Appellate Court Decision
The appellate court noted that under the rules — 12 NYCRR 300.13[b][2][iv] — an application for administrative review, such as that filed by Claimant, must include proof of service upon "all necessary parties of interest." The court further observed that in 2016, the rule was amended to define "necessary parties of interest" as "claimants, self-insured employers, private insurance carriers, the state insurance fund, special funds, no-fault carriers per section 142 of the Workers' Compensation Law, or any surety, including but not limited to the uninsured employer's fund, and the liquidation bureau" [see 12 NYCRR 300.13[a][4]].
The court stressed that although attorneys are generally not considered necessary parties of interest under the rule, the rule further provides that "[a] claimant's attorney or licensed hearing representative, properly designated by the claimant as his or her representative, shall receive a copy of any applications or rebuttals filed under this section." As to counsel for carriers, the court observed that according to a 2005 release by the Chair of the Board, notices were be sent to carrier attorneys "as indicated via the carrier's delegation authority." Here, however, the carrier had not delegated authority to its attorney. The court concluded that, if the issue was properly before the court — which as noted above was technically not the case since it had not been raised at the Board level — the appellate court would not find the Board's rule to be beyond its rule-making authority, nor was it offensive to notions of due process.