Employer's failure to serve a copy of its application for a review of a decision by the Workers' Compensation Board on claimant's new legal representative may result in the Board declining to review the decision

Claimant, a fire department lieutenant, filed a claim for workers' compensation benefits alleging that she experienced long-term health issues after contracting COVID-19 at work. The self-insured employer and its claims administrator [collectively Employer] filed a first report of injury-denial [Form FROI-04] on February 10, 2021 controverting the claim.

After hearings, a Workers' Compensation Law Judge [WCLJ] issued a decision filed July 7, 2021, which, among other things, established the claim for contraction of COVID-19 at work, set claimant's average weekly wage, authorized medical treatment and continued the case. The Workers' Compensation Board [Board] sent a copy of the WCLJ's decision to claimant and her then-current legal representative.

On that same day, July 7, 2021, the Board received a signed Form OC-400, Notice of Substitution and Appearance, indicating that Claimant had retained a new legal representative, which form indicated that a copy of the change notice was sent to the Employer. The Board sent a letter to Claimant confirming the substitution of counsel on July 13, 2021. A copy of the Board's July 13, 2021, letter to Claimant was sent to Claimant's prior representative and the Employer.

On August 5, 2021, Employer filed a Form RB-89 applying for Board review of the WCLJ's findings and determination and served the form on Claimant's prior counsel but not her then current counsel. Claimant objected, contending Employer's application was defective as it was not served on her current legal representative. Exercising its discretion, the Board denied Employer's application for review of the WCLJ's decision.* The Employer appealed.

The Appellate Division sustained the Board's denial of the Employer's application seeking a review of the WCLJ' findings and decision, finding that Claimant properly designated her new attorney as her legal representative and the Board confirmed Claimant's action in a letter sent to the Employer.

Citing 12 NYCRR 300.13 [a] [4]; [b] [2] [iv] [d]; [b] [4] [i], the Appellate Division opined the Board "did not abuse its discretion in denying the [Employer's] application for review" in view of the Employer's failure to serve or provide proof of service upon Claimant's current counsel.

* The Appellate Division observed "The fact that claimant's counsel served a timely rebuttal does not compel a different result" citing Matter of Harrell v Blue Diamond Sheet Metal, 146 AD3d 1189.

Click HERE to access the Appellate Division's decision posted on the Internet.