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Subject Number 046-1572 Adoption of Amendment of Workers' Compensation Law (WCL) § 24 (Attorney's Fees)

Board Bulletins and Subject Numbers

December 13, 2022

Introduction:

The amendment of Workers' Compensation Law (WCL) § 24, effective January 1, 2023, will significantly affect the way attorney's fees are awarded in workers' compensation proceedings.

This Subject Number addresses the statutory amendment, the resulting revisions made to the Board's regulations, the modification of Board forms, and the importance of payment history information in the Board's Claims Information System (CIS) and eCase.

Statutory changes:

Regulatory changes:

The Chair adopted the amendments to sections 300.17, 300.36, and 300.38 of Title 12 NYCRR to align the regulations with amendments to WCL § 24 that will take effect January 1, 2023.

The Notice of Proposed Rule Making was published in the October 5, 2022, edition of the State Register. A Notice of Adoption will be published in the December 28, 2022, edition of the State Register, and the regulation amendments will also take effect on January 1, 2023.

Board Rule 300.17

12 NYCRR 300.36

Board Rule 300.36(j), relating to the approval of WCL § 32 waiver agreements, was amended to require that all fees be awarded consistent with WCL § 24(2)(f), and to remove the provision indicating that an agreement may provide for "reasonable" fees.

12 NYCRR 300.38

Board Rule 300.38(f), relating to the controverted claims process, was amended to remove paragraph (5), which allowed for a mandatory, substantial fee reduction for: (i) failure to timely serve on all parties and file with the Board the claimant's pre-hearing conference statement; (ii) filing a materially incomplete pre-hearing conference statement for claimant; (iii) failure to list a witness, who subsequently testifies, on claimant's pre-hearing conference statement; or (iv) failure to include with claimant's pre-hearing conference statement a copy of any document not in the electronic case file, which the claimant had in their possession or could reasonably have obtained, if such document is used by claimant's legal representative in seeking to establish the claim.

Form changes:

Section 32 Waiver Agreement: Claimant Release (Form C-32.1) was modified to remove Question (9), which asked: "Do you agree with the amount of the fee requested by your attorney or licensed representative? The Board may approve or modify the amount of the requested fee. (If no, explain below.)"

Notice of Retainer and Substitution (Form OC-400) was modified to include the up-to-date version of Board Rule 300.17.

Application for a Fee by Claimant's Attorney or Licensed Representative (Form OC-400.1) was streamlined, requiring only that the following be included:

The RB-89 family of forms were modified to remove Question (17), which asked: "Will you be requesting an increase in attorney's fees?" on the Application for Board Review (Form RB-89), Rebuttal of Application for Board Review (Form RB-89.1), Application for Reconsideration/Full Board Review (Form RB-89.2), and Rebuttal of Application for Reconsideration/Full Board Review (Form RB-89.3).

Grace period for new forms:

Form ID Last Day for Old Versions First Day for New Versions
OC-400 12/31/2022 1/2/2023
OC-400.1 12/31/2022 1/2/2023
C-32.1 12/31/2022 1/2/2023
RB-89 12/31/2022 1/2/2023
RB-89.1 12/31/2022 1/2/2023
RB-89.2 12/31/2022 1/2/2023
RB-89.3 12/31/2022 1/2/2023

There will be a 60-day grace period for the RB-89 family of forms. When this grace period is over, the Board will continue to scan these forms, but begin to exercise its discretion to deny review of these applications and rebuttals.

Payment history information:

CIS and eCase both have a FROI/SROI tab that displays information transmitted electronically by claim administrators on the First Report of Injury (FROI) and Subsequent Report of Injury (SROI). The Cumulative Benefits, OBTs (Other Benefit Types), and Recoveries tab within the FROI/SROI tab is especially helpful in that it provides claim payment history information. Specifically, the cumulative benefits paid by the claim administrator are listed by benefit type and total amount paid to date.

The Cumulative Benefits, OBTs (Other Benefit Types), and Recoveries tab

The Board Awards tab in eCase also displays awards that the Judge has made.

Board Awards tab

Beginning in 2023, the Board will be required to consider "…the amount of the compensation awarded, having due regard for the financial state of the claimant… (see WCL § 24[2])." The information in both the Cumulative Benefits, OBTs, and Recoveries tab and the Board Awards tab will assist Judges in determining compensation previously awarded to the claimant and the propriety of the requested attorney's fee.

The failure to timely file a required FROI or SROI necessitates the imposition of a penalty under WCL § 25(3)(e) in the amount of $50.

If the failure of a payer to timely file a FROI or SROI results in the institution or continuation of proceedings without reasonable grounds, a penalty under WCL § 114-a(3)(i) shall be imposed. Instructions for using the FROI/SROI tab in eCase can be found on the FROI/SROI Tab page of the Board's website.

Conclusion:

Any questions relating to the implementation of the amendments to WCL § 24 should be addressed to the Board's Office of General Counsel at (518) 486-9564, or officeofgeneralcounsel@wcb.ny.gov.

Clarissa M. Rodriguez
Chair