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New York State
Workers' Compensation Board
OFFICE OF THE CHAIRMAN
328 State Street  Schenectady, New York 12305
Subject No. 046-128

PILOT PROGRAM ON THE FAXING OF APPLICATIONS FOR REVIEW AND REBUTTALS

Supersedes Subject No. 047 dated April 10, 1992 with respect to Forms RB-89 and RB-89.1 ONLY

Date:  September 14, 2004

OVERVIEW

Effective Wednesday, September 15, 2004, the Workers' Compensation Board is implementing a six-month pilot program that will allow the faxing of appeals documents, which include applications for review (Cover Sheet Form RB-89 and associated documents) and rebuttals (Cover Sheet Form RB-89.1 and associated documents). If the procedures outlined below are followed, the Board will accept these faxed applications and rebuttals as if they were served upon the Board via mail or personal delivery. This pilot encompasses all cases adjudicated within the State of New York.

The Board continues to expand its commitment to an environment in which the electronic filing of documents is convenient, secure, and user-friendly. This pilot program is inaugurated with an eye towards eventually implementing permanent procedures that will allow for the option of faxing all Forms RB-89 and RB-89.1.

Faxed appeals and rebuttals will be received on a line set aside solely for this project. THIS LINE MAY NOT BE USED FOR THE FAXING OF ANY OTHER FORMS OR MATERIALS UNRELATED TO THE PILOT PROGRAM. In accordance with Subject Number 047, the Board at this time will not accept any other documents sent by fax, to any Board office, absent express prior authorization from that office.

The Board encourages practitioners to utilize the fax option during this pilot program. Our decision on whether to make the pilot permanent will largely turn on how successfully the option is used. If appeals are filed properly, with proper cover sheets, and without unnecessary excess documentation, then it will be clear to the Board that the fax option is a valuable addition for practitioners and other stakeholders.

WHO MAY PARTICIPATE IN THE PILOT?

All parties who have the legal right to file appeals and rebuttals under the Workers' Compensation Law, i.e. all claimants, their attorneys or licensed hearing representatives, carriers, self-insured employers, and other parties of interest, with an appealable WC Law Judge decision emanating from a case adjudicated anywhere in New York State, may file appeals and rebuttals by fax, per these procedures.

If the appeal has been filed personally, or by mail, the respondent may still file the rebuttal via fax. Similarly, if the appeal is served upon the Board by fax, the respondent may still file a rebuttal via regular mail, or personal delivery. Faxing is an option to both applicant and respondent, and is not mandatory.

Please keep in mind that while the Board is allowing service by fax, service upon all other parties of interest must still be accomplished according to law. Do not assume that any other parties will accept service by fax of papers that must be served upon them. Rule 13 [12 NYCRR 300.13], as it appears on the RB-89 and RB-89.1, indicates "…together with proof of service upon all other parties in interest. Such proof of service shall consist of a United States Postal Service certificate of mailing by registered or certified or first class mail or affidavit or affirmation of personal service, or other satisfactory proof of service." It does not specifically mention fax as a means, and is therefore at the discretion of the parties of interest.

HOW TO APPEAL BY FAX

All applications for review and rebuttals thereto, except those filed by a claimant acting on his or her own behalf, must be accompanied by the prescribed cover sheet, Form RB-89 or RB-89.1. There must be a properly sworn affidavit or affirmation of service. The applicant MUST fax both sides of the RB-89 or RB-89.1 form, as the first two textual pages of the transmitted materials. This requirement is based upon the fact that the vast majority of practitioners utilize the Affidavit/Affirmation of Service forms provided on the reverse side of the RB-89 and RB-89.1. A standard FAX cover sheet should not be sent.

The faxing of an appeal or rebuttal does not limit in any way the applicant's obligation to fully comply with WCL §23 and 12 NYCRR 300.13, or any other section of the Workers' Compensation Law. For example, the applicant remains responsible to timely and properly serve all parties of interest, per 12 NYCRR 300.13. The Board does not incur any additional obligations or responsibilities to serve, notify, or advise the applicant or any other party as to the admissibility or reliability of any documents received by fax. Nor does service upon the Board by fax expand the rights of an applicant or respondent. If an application or rebuttal is defective, the fact that service was accomplished by fax does not in any way limit the Board's discretion to deny review under 12 NYCRR 300.13(e).

When the application for review or rebuttal is served upon the Board by fax, DO NOT also send a copy to the Board by U.S. Mail, or by personal delivery.

FAX NUMBER

The Fax number for this Pilot Program ONLY is (607) 721-8217.

WHAT TO INCLUDE

All appeals by fax should include the following:

  • Form RB 89 or RB 89.1, BOTH SIDES – this must be the first document followed by all associated documentation.
  • If the properly executed affidavit or affirmation of service on the rear of the form is not utilized, please include the separate affidavit or affirmation immediately after the RB-89 or RB 89.1
  • Legal Brief
  • Affidavits, if any
  • All related documentation must be faxed together, contiguously.
  • All faxed items must be legible in order to be reviewed by the Board.

WHAT NOT TO INCLUDE

Please DO NOT include any documents that have previously been made part of the record in prior filings, submissions, or hearings. As long as you properly refer to or cite a document, the Board Panel will be able to examine the document in the Electronic Case Folder. If you refer to a court case or properly redacted, properly cited Memorandum of Decision, you may cite the decision, without attaching an actual copy. (See Subject No. 046-110, dated September 5, 2002, The Use of Board Decisions as Precedent in Matters Before the Board.)

TIMELINESS

As stated above, the applicant or respondent remains fully responsible for properly filing a timely application or rebuttal. Under WCL §23, a party in interest must file with the Board within 30 days of the filing of the notice of decision. All rebuttals must be filed within 30 days of the service of the application for review. If the 30th day falls on a weekend or legal holiday, the application/rebuttal is due on the next business day, per General Construction Law §25-a.

The Board's fax machine will be able to accept applications/rebuttals at night and on weekends and holidays. The machine will note the date and time that the fax is received. If the 30th day is a business day, that application/rebuttal may be timely served by fax up until midnight Eastern Standard Time/Eastern Daylight Savings Time of that day. As long as the first page of the transmittal is received prior to midnight of the 30th day, the entire transmittal will be considered timely. If the 30th day is a weekend or holiday, the tolling of the due date applies. For example, if the 30th day is a Sunday, the application/rebuttal may be faxed that day (the fax machine will accept it), or the applicant/respondent may wait until the next business day.

FULL BOARD REVIEW/APPELLATE DIVISON

Applications for Full Board Review, and rebuttals to such applications, may be served upon the Board by fax, in accordance with the procedures stated above. However, Notices of Appeal to the Appellate Division, Third Department may NOT be served upon the Secretary of the Board by fax.

TECHNOLOGY

The fax technology utilized by the Board provides ample memory to handle multiple faxes at the same time. In the event of a technological failure, the Board will not assume liability for the non-receipt of faxed documents. The party will receive a printed confirmation report post-faxing via the sending fax machine. This report will indicate success/failure of the job. The Board will make reasonable efforts to notify stakeholders when a technological failure within the Board's fax lines or equipment is known by the Board to have happened. The Board will not notify any stakeholders as to events external to the Board, such as power failures. Parties remain fully responsible for the service of documents upon the Board. Failure of technology or electronic communication or unavailability of the Board's fax machine will not release the party from timely filing appeals and rebuttals as required by the Workers' Compensation Law and the Board. The party must provide the Board with all required documentation in accordance with WCL §23 and 12 NYCRR 300.13.

Thank you for your cooperation in making this pilot program a success.

 

David P. Wehner
Chairman