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Requests for Administrative Review

NY-ADR

11/10/15 N.Y. St. Reg. WCB-45-15-00020-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 45

November 10, 2015

RULE MAKING ACTIVITIES

WORKERS' COMPENSATION BOARD

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

I.D No. WCB-45-15-00020-P

Requests for Administrative Review

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 300.13 of Title 12 NYCRR.

Statutory authority:

Workers’ Compensation Law, sections 117 and 141

Subject:

Requests for Administrative Review.

Purpose:

To clarify the proecss for requesting administrative review and full Board review including requests for reconsideration.

Text of proposed rule:

Sections 300.13, 300.15 and 300.16 of Title 12 of NYCRR are repealed and a 300.13 is added:

300.13 Administrative Review, Full Board Review, and Applications for Board Reconsideration

(a) Definitions

(1) “Administrative Review” means an administrative appeal from a decision of a Compensation Claims Referee, under section twenty-three of the workers’ compensation law, or an administrative appeal of a finalized administrative determination as set forth in part three-hundred twelve of this chapter.

(2) “Full Board Review” means an administrative appeal from a decision of the Board pursuant to section twenty three of the workers’ compensation law. Such review is discretionary unless a board member dissents from the ruling regarding a finding other than the issue of whether to appoint an impartial medical specialist. Upon notice to the claimant, his or her legal representative, if any, the employer or carrier or Special Fund, the full board may review any case on its own motion.

(3) “Filing” means an application has been received by the Board at the designated point of receipt. Upon posting on the Board’s website, the Chair may prescribe the format and method for filing and service including, among other methods, electronic, mail, fax or personal service.

(4) “Necessary Parties of Interest” means, for the purposes of this section, claimants, self-insured employers, private insurance carriers, the state insurance fund, special funds, or any surety, including but not limited to the uninsured employer’s fund, and the liquidation bureau. Treating Medical Providers and Independent Medical Examiners are not parties of interest and may not make filings, oral arguments, or otherwise participate in the administrative review process. Claimant’s attorneys and licensed hearing representatives are not necessary parties of interest under this rule, except that an attorney or representative is a necessary party in an appeal that concerns the amount of a fee payable to an attorney or representative or a penalty imposed against an attorney or licensed hearing representative.

(b) Requests for Administrative Review and Requests for Full Board Review filed pursuant to Workers’ Compensation Law Section 23, and Requests for Reconsideration of a Board Panel decision pursuant to Section 300.14 of this Part.

(1) Application Format. Unless submitted by an unrepresented claimant, an application to the Board for administrative review of a decision by a Workers’ Compensation Law Judge shall be in the format as prescribed by the Chair.

(i) The application in the format prescribed by the Chair must be filled out completely by the appellant, except that the requirement to utilize the application format shall not be imposed upon a claimant who is unrepresented.

(A) Unless otherwise specified by the Chair, the appellant may attach a legal brief of up to five pages in length, in 12-point font, with one inch margins, on 8.5 inch by 11 paper. A brief longer than five pages will not be considered, unless the appellant specifies, in writing, why the legal argument could not have been made within five pages. In no event shall a brief longer than eight pages be considered.

(B) Documents that are present in the Board’s electronic case folder at the time the administrative review is submitted may not be, included with or attached to the application. The Board may reject applications for review by an appellant, or an attorney or licensed representative of the appellant, who attaches documents that are already in the case folder at the time of the application.

(C) If the appellant seeks to introduce additional documentary evidence in the administrative appeal that was not presented before the Workers’ Compensation Law Judge, the appellant must submit a sworn affidavit, setting forth the evidence, and explaining why it could not have been presented before the Workers’ Compensation Law Judge. The Board has discretion to accept or deny such newly filed evidence. Newly filed evidence submitted without the affidavit will not be considered by the Board panel.

(ii) The application for administrative review:

(A) shall specify the issues and grounds for the appeal;

(B) shall specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed;

(C) shall, when filed by an employer or carrier, specify which payments are continuing pending resolution of the administrative appeal, and which payments are stayed pursuant to section twenty-three of the Workers’ Compensation Law. For all payments stayed, the appellant shall indicate the issue on appeal that forms the legal basis for staying payments;

(D) shall include proof of service upon all necessary parties of interest, in the format prescribed by the Chair. Service upon a party who is not adverse to the interest of the appellant is optional, and failure to properly serve an optional party shall not be deemed to render the appeal defective. Failure to properly serve a necessary party shall be deemed defective service and the application shall be rejected by the Board.

(a) Proof of service in the format prescribed by the Chair shall specify the papers served, the person who was served, the date, and method of service including the actual address, email address or fax number where service was transmitted. An affidavit, affirmation, or other satisfactory proof of service as prescribed by the Chair, shall be submitted with the Application for Administrative Review to the Board. The affidavit, affirmation, or other proof of service must certify that all service was completed within thirty days from the filing of the decision that is the subject of the Application for Administrative Review.

(b) There is no requirement that each party be served in the same manner. Service is deemed timely if completed by the party of interest within thirty days of the filing of the decision by the Board.

(c) Unless the Chair directs service by electronic means, the appellant must certify in the affidavit or affirmation of service, that the party served provided explicit permission to receive service by fax, email, or other electronic means.

(d) When the administrative appeal is filed by the carrier, self-insured employer, or other payor or potential payor, service shall be upon the claimant, and claimant’s attorney or representative, and other necessary parties in interest.

(e) Service upon a party who is not adverse to the interest of the appellant is optional, and failure to properly serve an optional party shall not be deemed to render the appeal defective.

(E) Shall include any additional fee request in the manner set forth by the Chair. Failure to request an additional fee shall result in waiver of such fee.

(iii) Filing with the Board

(A) The application shall be filed with the board within thirty days after the notice of the filing of the decision. All filings must be made using methods designated, permitted, and prescribed by the Chair. If more than one filing option is permitted by the Chair, the appellant shall choose one method for filing. Any duplicate filings may be deemed to be raising or continuing an issue without reasonable grounds, and may subject the appellant to assessments under 114-a(3) of the Workers’ Compensation Law.

(B) Method of filing the application

(a) By mail shall be sent to the Board’s designated Centralized Mailing Address;

(b) By fax shall be sent to the Board’s designated Centralized Fax Number;

(c) By email shall be sent to the Board’s designated email address for claims documents;

(d) By electronic means shall be filed in the method and manner prescribed by the Chair. An application that is submitted by electronic means in accordance with this subparagraphs shall not be deemed filed with the Board until such submission is received and acknowledged by the Board.

(C) The Chair may prescribe and require the format and the methods of filing of administrative appeals, including by electronic means, and may set the requirements to include various data fields, except that claimants who are unrepresented are exempt from the requirement to file electronically.

(iv) Denial of review. The application for review may be denied by issuance of a Board panel decision, or the appellant may be notified by letter or electronic notice provided by the Administrative Review Division, under the following circumstances:

(A) When the appellant, other than a claimant who is not represented, does not comply with prescribed formatting, completion and service submission requirements;

(B) When the appellant does not file the application within thirty days;

(C) When the appellant does not properly file the application with the Board;

(D) When the appellant does not provide proper proof of timely service upon a necessary party in interest other than a party who is not adverse to the appellant. When the appellant fails to supply proper proof of timely service upon a necessary party,

(a) When a rebuttal is submitted, the necessary party shall raise the issue of defective service in its rebuttal. Failure to raise the issue of defective service in the rebuttal shall constitute a waiver of the issue.

(b) When no rebuttal is filed, the Board may consider whether the application was defectively served, and if so, the Board may deny review without decision.

(E) Where the appellant did not interpose a specific objection or exception to a ruling or award by a workers’ compensation law judge.

(a) Where a decision is made at a hearing, the appellant did not preserve a specific objection to the ruling or award at the hearing on the record.

(b) Where proceedings occur off-calendar, such as at a deposition, the appellant did not preserve a specific procedural objections on the record.

(c) No objection to findings made by reserved decision that have not been previously made at a hearing, need be interposed prior to filing of an application for review.

(c) Rebuttal. A party adverse to the application for administrative review may file a rebuttal to such application for review. The rebuttal shall be in writing and, for parties other than an unrepresented claimant, shall be accompanied by a cover sheet in the format prescribed by the chair. Such rebuttal shall be served on the Board and all necessary parties within thirty days after service of the application for review together with proof of service upon all necessary parties in the form and format prescribed by the Chair.

(d) The Board shall have the verbatim records of all hearings and proceedings placed in the case file it maintains in a readable, viewable or audible format where the issue or issues raised in the application for review were covered, and the case file shall only be considered by a Board Panel after the verbatim records covering the disputed issues are inserted in the case file.

(e) Stay of Payments. There is no stay of any payment due to the claimant or the Board upon a filing of an application for full Board review.

(f) When a claimant is not represented, the Board shall have discretion to waive the requirements contained in this section. An unrepresented claimant, who subsequently retains counsel, may have the procedural requirements of this section waived for the time when he or she was unrepresented.

Text of proposed rule and any required statements and analyses may be obtained from:

Heather MacMaster, Workers' Compensation Board, 325 State Street, Office of General Counsel, Schenectady, New York 12305-2318, (518) 486-9564, email: [email protected]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: The Workers’ Compensation Board (hereinafter referred to as Board) is authorized to repeal of 300.13, 300.15 and 300.16 of Title 12 of the NYCRR and addition of 12 NYCRR Section 300.5. Workers’ Compensation Law (WCL) Sections 141, 117(1) and 23 authorize the Chair to adopt reasonable rules consistent with and supplemental to the provisions of the WCL.

2. Legislative objectives: The proposed addition of 12 NYCRR Section 300.13 facilitates an orderly administrative review process and eliminates ambiguities and inconsistencies.

3. Needs and benefits: The purpose of the proposed addition is to create clear standards for the preservation of a party’s right to administrative review, increase the Board’s ability to deny applications for review that do not conform to clearly stated standards when the applications are submitted by parties of interest (except unrepresented claimants), and clarify that certain enumerated inconsequential errors, such as failing to serve a party not adverse to the application, does not render the application defective.

4. Costs: The proposed amendments should reduce costs for all parties, the Board, State and local government, by reducing the number of unnecessary decision issued on defective applications, and reducing delays in the administrative review process. There are no projected costs to regulated parties who may be affected by the proposed regulation. There are no projected costs to the Board, State and local governments.

5. Local government mandates: The proposed amendment does not impose any mandate, duty or responsibility upon any municipality or governmental entity.

6. Paperwork: The proposed amendment reduces duplicate paperwork, wherein parties deliver copies of a request for administrative review by fax, mail, and in person delivery.

7. Duplication: There is no duplication of State or federal regulations or standards.

8. Alternatives: There were no significant alternative proposals under consideration. The Board considered making no change to the current regulations. However, the widespread concern by stakeholders that the current process facilitates unmeritorious applications for review and delays adjudication of claims, caused the Board to reject that consideration.

9. Federal standards: There are no applicable federal standards which address the standards contained in the proposed regulation.

10. Compliance schedule: It is believed that compliance will be easily achieved, following an update in Board processes and forms, and community outreach.

Regulatory Flexibility Analysis

1. Effect of rule: The proposed regulation will not affect employers, as defined in WCL § 2(3), including the State, municipal corporations, fire districts, public authorities and political subdivisions, who appear before the Board on matters relating to Workers’ Compensation claims. The rule does not impact small businesses or local governments as employers, though it is intended to bring down the cost of workers’ compensation by reducing reducing duplicate paperwork.

2. Compliance requirements: The proposed regulation does not require any action by small businesses or local governments. The proposed regulation does not impose or require any reporting requirements or additional paperwork on the part of small businesses or local government.

3. Professional services: Small businesses and local governments will not have to engage any professional services as a result of the proposed regulation.

4. Compliance costs: Small businesses and local governments will not incur any compliance costs as a result of this proposed regulation. It is anticipated that small businesses and local governments will experience a decrease in their workers’ compensation costs as a result of this change.

5. Economic and technological feasibility: Small businesses and local governments will not incur any capital costs or annual operating costs or be required to purchase or update technological equipment as a result of the proposed regulation.

6. Minimizing adverse impact: The proposed regulation will have no adverse economic impact on small businesses or local governments.

7. Small business and local government participation: Although the proposed regulation does not adversely impact on public or private entities, the Board requested comment on the proposed regulation from the Business Council of New York State.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas: The proposed regulation should not affect employers, as defined in WCL § 2(3), in rural areas, including municipal corporations, fire districts, public authorities and political subdivisions, who appear before the Board on matters relating to Workers’ Compensation claims.

2. Reporting, recordkeeping and other compliance requirements; and professional services: The proposed regulation does not require any action whatsoever by small businesses or local governments in rural areas. The proposed regulation does not impose or require any reporting requirements or additional paperwork on the part of small businesses or local governments in rural areas. Small businesses and local governments in rural areas will not have to engage any professional services as a result of the proposed regulation.

3. Costs: Small businesses and local governments in rural areas will not incur any capital costs, annual operating costs or any compliance costs as a result of the proposed regulation.

4. Minimizing adverse impact: The proposed regulation will have no adverse economic impact on small businesses or local governments in rural areas.

5. Rural area participation: because the proposed amendment should have no impact on rural areas, the Board has not conducted outreach regarding the proposed amendment.

Job Impact Statement

The proposed rule will not have an adverse impact on jobs. The proposed rule repeal of 300.13, 300.15 and 300.16 of Title 12 of the NYCRR and addition of 12 NYCRR Section 300.13 to clarify the rules for requesting administrative review in workers’ compensation claims. The rule does not eliminate any existing process, procedure, or program, and will not result in an adverse impact on jobs.

End of Document