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Subject Number 046-878 Board Adopts New Administrative Review, Full Board Review, and Applications for Board Reconsideration Regulations

Board Bulletins and Subject Numbers

September 29, 2016

The Board has adopted new regulations for Administrative Review, Full Board Review, and Applications for Reconsideration. The new regulations repeal §300.13, §300.15 and §300.16 of Title 12 of NYCRR, and adopt a new §300.13. These changes will be effective October 3, 2016.

Some of the items to note in the new §300.13 include specific items on the length of legal briefs, electronic service, filing methods, and the bases for denial of review.

Application Format

Appellants and respondents, other than unrepresented claimants, must use the format prescribed by the Chair. The Chair designates Forms RB-89, Application for Board Review and RB-89.1, Rebuttal of application for Board Review, as the prescribed format for applications and rebuttals. These forms have been modified to conform with the new regulations.

The revised forms are available on the Board’s website. Please see Application For Board Review (Form RB-89) and Rebuttal of Application for Board Review (Form RB-89.1). After December 1, 2016, the Board will only accept the modified 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.

Page Length of Briefs

Unless otherwise specified by the Chair, legal briefs attached to an appeal can be up to eight pages in length. The Board may deny applications when the brief exceeds eight pages, unless the appellant specifies in writing why the legal argument could not have been made within the eight-page limit. In those cases, the brief can be no longer than 15 pages.

Electronic Service

Unless the Chair designates electronic service, the appellant must certify in the affidavit or affirmation of service that the party served provided explicit permission to receive service by fax, email, or other electronic means.

Method of Filing with the Board

The Chair may designate the method of filing the application and rebuttal with the Board among mail, electronic or fax; however, personal service at a Board office is not included in the list of acceptable filing methods. An application or rebuttal personally served at any Board office will not be considered filed as such application or rebuttal will not have been filed in accordance with 12 NYCRR 300.13(b)(3) and will be destroyed. Appellants must choose one method to file the application and file only one application. Any duplicate filings may be deemed to be raising or continuing an issue without reasonable grounds, and may subject the appellant to assessments under Workers' Compensation Law § 114-a.

The Chair has designated the following methods of filing the application and any rebuttal:

An application or rebuttal received at any other mailing address, fax number, email address, or via any other web upload link will not be considered filed with the Board and will be destroyed.

The Board encourages parties to file the applications and rebuttals using the Board's Web Upload Link. Documents submitted using the Web Upload Link are usually viewable in eCase faster than if the documents are submitted by mail, email or fax. The transmission is more secure than either fax or email and the image quality is usually better. If an error occurs during the upload, a notification will pop up alerting the submitter of the unsuccessful upload. When the upload is successful, an email is sent notifying the submitter that the image imported. A confirmation code is included in the email. Also, the submitter can generate a report listing the document and when it was uploaded.

For information on how to submit forms to the Board, please visit the Forms section of the Board’s website.

Reasons for Denial of Review

The reasons for denial include explicit items for improperly formatted and incomplete filings, untimely or improperly filed applications, and untimely or improper service to the parties. An additional reason has been added to deny review if, at the hearing, the appellant did not make a specific objection or exception to a ruling or award by a workers' compensation law judge. The application for review may be denied by letter issued by the Chair or the Chair’s designee when the appellant, other than an unrepresented claimant, does not comply with the prescribed formatting, completion and service submission requirements.

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.

Kenneth J. Munnelly