October 11, 2005
The Workers' Compensation Board initiated a pilot program for the faxing of appeals (see Subject Number 046-128) on September 15, 2004. The pilot has been extremely well received, as evidenced by the number of customers who have used the dedicated fax number as a way to properly and timely serve applications for review (Cover Sheet Form RB-89 and associated documents) and rebuttals (Cover Sheet Form RB-89.1 and associated documents).
The statistics show that the fax program has been popular and, for the most part, properly utilized by practitioners. The practitioners have used the proper cover forms, attached the necessary forms and accompanying documentation, and have largely avoided sending non-appeals materials through the fax line.
During the pilot, the Board received a monthly average of 387 properly faxed applications and rebuttals at the dedicated fax line. The Board also received a monthly average of 82 faxes that were inappropriate, i.e., not part of the program in that they were neither applications nor rebuttals in the context of an appeal to the Board. Thus, while nearly 83% of all faxed materials were appropriately sent, the Board asks that the practitioners help us reach 100% compliance. The Board must expend resources in responding to the inappropriately faxed materials, which can be completely eliminated simply by adhering to the basic guidelines of the program.
Overall, the pilot program was a tremendous success, providing a valuable convenience to the practitioners in all areas of the state. The Board is pleased to offer the fax option, as presented below in its permanent form.
As the pilot has proven to be a valuable option for practitioners and other stakeholders, the Workers' Compensation Board hereby announces that this program is now permanent. 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 program 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.
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 PROGRAM. In accordance with Subject Number 047, the Board will not accept any other documents sent by fax, to any Board office, absent express prior authorization from that office. Please note that Notices of Appeal to the Third Department must be served on the Secretary of the Board, and may NOT be served via fax.
The option of service of applications and rebuttals upon the Board by fax is a privilege available to all practitioners. Misuse or abuse of the system, including but not limited to the repeated improper use of the dedicated fax line as an attempted method to serve documents other than applications or rebuttals upon the Board, may result in the revocation of a practitioner's firm or entity's privilege to utilize this program.
To encourage the use of the fax option, the Board has adopted two changes subsequent to the Pilot program. Forms RB-89 and RB-89.1 now include a check box to indicate when a practitioner is serving the application or rebuttal upon the Board by fax. Concomitant with that, the Board will now accept the practitioner's fax transmission receipt as presumptive evidence of service by fax upon the Board. These changes are designed to encourage proper use of the fax program, discourage the production of unnecessary extra copies and documentation, and to ease the concerns surrounding proof of service by fax.
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, Special Funds Conservation Committee, Uninsured Employers' Fund, 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 for 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 Forms 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." The rule does not specifically mention fax as an accepted means of service, and it is therefore at the discretion of the parties of interest as to whether they will accept service 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 Form RB-89 or RB-89.1 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 Forms 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.
The Fax number for this Program ONLY is (607) 721-8217 1-877-533-0337.
All appeals by fax should include the following:
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.)
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 an application for review 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.
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.
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. As indicated above, the Board will accept the fax transmission receipt as presumptive evidence of timely service upon the Board. 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 permanent program a success.
David P. Wehner