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July 31, 2019

Workers' Compensation Board rejected a claimant's application for review of a Workers' Compensation Law Judge's decision because it was not filled out completely


The Workers' Compensation Board ruled that a Claimant failed to comply with the requirements of 12 NYCRR 300.13 (b) and denied review of a decision by the Workers' Compensation Law Judge. The Board found that the application for Board review was defective because it was not filled out completely and, as a result, denied Claimant's application.

Claimant appealed, contending that the Board abused its discretion in denying her application for Board review based upon her failure to comply with the rules governing the content of such applications that require the application to be filled out completely. The Appellate Division disagreed and sustained the Board's determination.

The court noting that "the Board 'may adopt reasonable rules consistent with and supplemental to the provisions of [the Workers' Compensation Law],' and the Chair of the Board 'may make reasonable regulations consistent with the provisions of [the Workers' Compensation Law],''' explained that where, as here, the Board's regulations provide that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [of the Board]" and "must be filled out completely."

Here Claimant was represented by counsel and filed her Form RB-89 application for Board review. Although question number 13 on that application requested that claimant provide the "[h]earing dates, [t]ranscripts, [d]ocuments, [e]xhibits, and other evidence" that she would rely upon in her administrative appeal and advised to "see [the] instructions for details," it is not disputed that Claimant's application failed to provide the requested information by leaving the box for question number 13 blank.

As the Board explains in its guidance document on this issue, the "RB-89 [form] is the application for review itself, and [it] is not merely a coversheet." By requiring an applicant to completely fill out the application for Board review, "the 'completeness doctrine' assists the responding party in identifying the exact issues, grounds and evidence used in support of the application in determining the issues and crafting a timely and effective rebuttal. Having a complete application . . . also assists the Board in providing timely and effective review of the application . . . as it eliminates confusion over which evidence is involved in the application and which issues are preserved for appeal."

Completion of an application for Board review, opined the Appellate Division, means that "each section or item of [the application or rebuttal] is completed in its entirety pursuant to the instructions for each form" and that a form 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." Accordingly, said the Appellate Division citing 12 NYCRR 300.13 [b] [4] [i], the Board may deny an application for review where the party seeking review, other than a claimant who is not represented by counsel, fails to fill out completely the application or otherwise fails to "comply with prescribed formatting, completion and service submission requirements" [Emphasis supplied].

The Appellate Division said that in its view, "the Board's format requirements for applications for Board review submitted by represented claimants are reasonable given the reasons identified by the Board and were promulgated pursuant to its statutory authority and "broad regulatory powers" and sustained the Board's decision that Claimant's application was defective because it was not filled out completely.

The decision is posted on the Internet at:

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