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New York State
Workers' Compensation Board
OFFICE OF THE CHAIRMAN
328 State Street  Schenectady, New York 12305
Subject No. 046-127

Board Panel Modifications of Awards and Attorneys' Fees

Date:  January 22, 2004

In its continuing effort to improve the process for adjudicating claims, the Workers' Compensation Board has changed the procedure that will be followed when a Board Panel decision modifies a finding regarding a claimant's degree of disability or modifies a schedule loss of use award. These cases will no longer be returned to the hearing calendar for implementation of the Board Panel's findings. Instead, any adjustment to an award will be made by the Board Panel.

As these cases will no longer be returned to the hearing calendar, any request for an increase in an attorney's fee that may accompany a change in a claimant's award must be included with Form RB-89, Cover Sheet - Application for Review, or Form RB-89.1, Cover Sheet - Rebuttal of Application for Review. Under the new procedure, the Board Panel will include changes to claimants' awards and changes to attorneys' fees in its Memorandum of Decision. This new process is intended to ensure that injured workers receive all benefits in a timely manner.

Background

In the past when a claimant's benefits were increased as a result of a Board Panel decision, the case was returned to the hearing calendar in order to implement the decision and to consider any requested increase in attorney's fees due to the new findings. Under this system, it was necessary for the claim to be placed on the hearing calendar so that a WC Law Judge could modify his or her prior findings and to consider the fee request. This resulted in delays in the adjudication of the affected claim as well as creating burdens to the system that affected all claims. The new procedure will eliminate these unnecessary hearings.

Procedure for Requesting a Fee Increase

When an attorney or licensed representative requests modification of a finding regarding degree of disability or a schedule loss of use award, the attorney or representative must request any corresponding fee increase at the time the Application for Review or Rebuttal is filed. In order to make such a fee increase request:

  1. The attorney or representative must attach a completed Form OC-400.1, Application for Fee, to the Application for Review or Rebuttal;
  2. Form OC-400.1 must indicate on page two in the space provided that this request for a fee increase is submitted in conjunction with an Application for Review or Rebuttal; and
  3. The completed Form OC-400.1 must be mailed to the claimant before it is attached to the Application for Review or Rebuttal and filed with the Board.
  4. Copies of the completed Form OC-400.1 must be attached and served on the payor (employer, carrier, Special Funds, Uninsured Employer's Fund, etc.) in conjunction with the Application for Review or Rebuttal.

Important: A completed Form OC-400.1 must be included with every request for a fee increase made in conjunction with an Application for Review or Rebuttal. As you are aware, when a fee of $450 or less is made at a hearing, no Form OC-400.1 need be filed. When a request for a fee increase is made pursuant to an Application for Review or Rebuttal, Form OC-400.1 must be filed every time, regardless of whether the requested fee exceeds $450.

To support this initiative, the Board has revised Forms OC-400.1, RB-89 and RB-89.1. The revised Form OC-400.1 has been amended to include a section to be completed if a fee increase is submitted in conjunction with an Application for Review. The revised Forms RB-89 and RB-89.1 have been amended to include a "Note" reminding all parties that the Board Panel will award, if approved, increased attorney fees in its decision. The revised forms are available at the Board's website (www.wcb.ny.gov) under the heading "Common Forms Online."

While streamlining the adjudication process, this new procedure also ensures that claimants remain apprised of all actions that may affect the outcome of their claims. This procedure is effective February 23, 2004.

 

Jeffrey R. Sweet
Acting Chairman