Date: December 16, 2010
The Board is implementing seven new forms, modifying two existing forms, and retiring several form letters utilized in the Conciliation process.
The Board is introducing six new proposed decision forms. The Board will no longer issue ECB-1, ECB-2 or ECB-3 Forms. Cases considered in accordance with Workers' Compensation Law § 25(2-b) will be issued on either a Proposed Decision (PD-NSL), or a Proposed Decision – Schedule Loss of Use (PD-SL) (for schedule loss of use decisions). There are also new proposed decision forms to amend a prior proposed decision and to cancel a prior proposed decision (with separate forms for those involving Schedule Loss of Use). Parties have 30 days to object to a proposed decision.
Form C-312.5, Agreed Upon Findings and Awards For Proposed Conciliation Decision, is a new form that parties may use in claims where represented claimants agree to findings and awards at a conciliation meeting, or where a represented claimant requests a proposed decision memorializing an agreement between the parties. Pursuant to 12 NYCRR 312.5, an agreement made outside of the conciliation meeting will become final 30 days from the mailing of the proposed decision unless a party files an objection within that 30 day period.
Forms RFA-1 and RFA-2 (used to request further action) have been revised. Form RFA-1, used by the claimant or claimant's representative has been changed to Form RFA-1W (for use by the claimant) and RFA-1LC (for use by the claimant's representative).
The RFA forms were reorganized to allow parties to identify the issue involved and to instruct parties as to what evidence is required for further development of the issue. Failure to submit the required evidence may result in a delay of the claim. Parties will receive a form letter from the Board for any RFA Form received without the required documentary evidence. It is important to note that any legal representative requesting an attorney fee needs to submit Form OC-400.1 with Form RFA-1LC. In addition, if an employer reimbursement is being requested, the employer needs to request the reimbursement in writing when submitting Form RFA-2.
The modified RFA-1W, RFA-1LC, and RFA-2 Forms will be available on the Board's website on December 17, 2010 at: www.wcb.ny.gov/content/main/Forms.jsp . Parties can expect to see these forms on claims handled by the Board from here forward. The Board understands that insurers, attorneys and licensed representatives who use these forms will need time to incorporate these modified forms into their work flows. Therefore, the next six months shall be considered a transition period, where parties can respond to older forms or file older versions of forms. However, all parties shall begin using the modified filing forms beginning June 1, 2011. The electronic versions of Forms RFA-1 and RFA-2 will continue to be available online, and will be revised for use on June 1, 2011. Parties who file these forms electronically should also submit required documents, even though the current electronic forms do not specifically state that such documentation is required.
Legal representatives and insurers who submit Form RFA-1LC or Form RFA-2 are required to certify that they have attempted to resolve the outstanding issue(s) with the opposing party. The requesting party is also attesting that he or she has a reasonable ground for requesting a hearing.
Claimant's representatives must certify that they have submitted the form with their client's consent after attempts to resolve the issue with the carrier or its counsel have failed (or that attempts to contact the opposing party have failed.) Unrepresented claimants who file an RFA-1W are not required to make any certification.
Carrier's counsel must certify that attempts to resolve the issue have failed or that attempts to contact the opposing party have failed.
The Board expects the parties and their legal representatives to diligently and conscientiously attempt to resolve issues before requesting a hearing. As such, the Board also expects to be advised if an opposing party has not negotiated in good faith, or if a party has avoided negotiation.
The following form letters utilized in the Conciliation process will be retired:
The Board appreciates the efforts of all stakeholders in the workers' compensation system to ensure claims are processed with all due diligence and speed.
Robert E. Beloten