April 27, 2017
As announced in Subject Number 046-878 Board Adopts New Administrative Review, Full Board Review, and Applications for Board Reconsideration Regulations, the Board adopted new regulations for Administrative Review, Full Board Review, and Applications for Reconsideration effective October 3, 2016. The new regulations repealed §300.13, §300.15 and §300.16 of Title 12 of NYCRR, and adopted a new §300.13.
New 12 NYCRR 300.13 sets forth the prescribed formatting, completion, service and submission requirements for applications for review and rebuttals filed on and after October 3, 2016. Applications for review and rebuttals that do not meet the prescribed formatting, completion, service and submission requirements may be denied, and rebuttals may not be considered. These requirements do not apply to applications and rebuttals filed by an unrepresented claimant.
Pursuant to §300.13(b)(1), applications for review must be in the format prescribed by the Chair; this requirement also applies to rebuttals (see 12 NYCRR 300.13[c]). In Subject Number 046-878, the Chair designated Application for Board Review (Form RB-89), and Rebuttal of Application for Board Review (Form RB-89.1), version 09-16, as the prescribed format. The Subject Number advised parties that after December 1, 2016, only the revised forms, Form RB-89 (09-16) and Form RB-89.1 (09-16) would be accepted. Applications submitted after December 1, 2016, using a version other than Form RB-89 (09-16), are not in the prescribed format and will be denied. Rebuttals submitted using a version other than Form RB-89.1 (09-16), after December 1, 2016, will not be considered.
Revised forms for Application for Reconsideration/Full Board Review (RB-89.2, version 1-17), and Rebuttal of Application for Reconsideration/Full Board Review (Form RB-89.3, version 1-17) are also now available on the Board’s website. For Applications for Reconsideration/Full Board Review filed after May 26, 2017, the Board will only accept version 1-17 forms. This includes the proper form identifier. Applications submitted using the old form or with an incorrect identifier are not in the prescribed format and will be denied. Rebuttals submitted using the old form will not be considered.
New § 300.13(b)(1) mandates that all applications for review “must be filled out completely,” which means that each section or item of Form RB-89, Form RB-89.1, Form RB-89.2, and Form RB-89.3 is completed in its entirety pursuant to the instructions for each form. A Form RB-89 (09-16), Form RB-89.2 (1-17), Form RB-89.1 (09-16), or RB-89.3 (1-17) is not “filled out completely” when a party responds to sections or items on the form merely by referring to the attached legal brief or other documentation without further explanation. For example, responding to section/item 11 on Form RB-89 (09-16) or section/item 13 on Form RB-89.2 (1-17) by simply stating, “See attached” is not sufficient and the form is not filled out completely. AS OF MAY 26, 2017 ANY APPLICATION FOR REVIEW BY A PARTY OTHER THAN AN UNREPRESENTED CLAIMANT THAT IS NOT FILLED OUT COMPLETELY WILL BE DENIED, AND ANY REBUTTAL FILED BY A PARTY OTHER THAN AN UNREPRESENTED CLAIMANT THAT IS INCOMPLETE WILL NOT BE CONSIDERED (see 12 NYCRR 300.13[b][i]).
As a reminder, appellants and respondents are encouraged to review new 12 NYCRR 300.13 to ensure they comply with all requirements, including the following examples:
- The Board may deny consideration of applications where the legal brief is longer than eight pages “… unless the appellant specifies, in writing, why the legal argument could not have been made within eight pages. In no event shall a brief longer than 15 pages be considered” (12 NYCRR 300.13[b][i]).
- The Board may deny applications when documents are included (with or attached to the application) that are already in the Board’s electronic case folder at the time the administrative review is submitted (12 NYCRR 300.13[b][ii]).
- The Board may consider additional evidence submitted with the application only if a sworn affidavit, setting forth the evidence, and explaining why it could not have been presented before the Workers’ Compensation Law Judge, is submitted with the evidence. Newly filed evidence submitted without the sworn affidavit will not be considered by the Board (12 NYCRR 300.13[b][iii]).
- Parties must file an application or rebuttal using one of the methods prescribed in 12 NYCRR 300.13(b)(3)(ii), Subject No. 046-878 and this Subject No 046-940; otherwise, the application will be denied and/or the rebuttal will not be considered.
- Parties that submit duplicate filings may be deemed to be raising or continuing an issue without reasonable grounds, and may be subject to assessments under Workers’ Compensation Law § 114-a(3) (12 NYCRR 300.13[b][i]).
The full text of the new §300.13 is available both on the New York State Register and the Board’s website under Laws, Regulations and Decisions. Forms RB-89 (09-16), RB-89.2 (1-17), RB-89.1 (09-16), and RB-89.3 (1-17) are also available on the Board’s website.
Kenneth J. Munnelly