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Appellate Division Reverses Board Denial of ABR For Outdated RB-89 Cover Sheet; Board Continues RB-89 Enforcement

On 10/25/18, the Appellate Division, Third Department, decided Johnson v. All Town Central Transportation. The court held that the Board acted improperly by dismissing a claimant’s Application for Board Review without review of the merits merely because the claimant’s attorney used an outdated version of the RB-89 coversheet. 
Over the last year, the Board has more frequently denied applications for review due to minor formatting errors. In some cases, the Board has denied appeals even on facts where there is arguably no violation of its rules at all. At a minimum, the Board’s denials based on these alleged deficits have been inconsistent.
In Johnson, there was no dispute that claimant’s counsel used the wrong form, outdated by six days, arguably violating Rule 300.13(b)(1), which requires that an Application for Board Review be prepared in the format required by the Chair. However, the court highlighted the lack of evidence of prejudice to any of the parties, including the Board, and held that the Board should have exercised its discretion to review claimant’s appeal rather than denying it without review of the merits. With this decision, a reasonable argument can be made that even if an Application for Board Review violates the Board’s formatting rules, it should be reviewed on its merits if the record contains no evidence of prejudice to any parties or the Board. 

Notably, the Board did not file a respondent's brief in Johnson, but it did so in a case decided a little over a month later, Waufle v. Chittenden, in which the Appellate Division affirmed the Board's decision denying an Application for Board Review filed using the incorrect form. The Appellant in Waufle used the RB-89.2 form "Application for Reconsideration/Full Board Review" rather than the correct RB-89 "Application for Board Review" form. The Appellant in Waufle also tried to correct his error by filing the correct RB-89 form, albeit after the deadline for filing an appeal of the 12/1/16 decision at issue. The Board denied both appeals, noting that in the former, the appellant used the wrong form and in the latter the Board declined to exercise its discretion to review a late-filed appeal. The Appellate Division affirmed both decisions.
Following the Johnson decision, the Board published  Subject Number 046-1119, in an attempt to clarify the formatting requirement which included a “Guidance Document of the Proper Application for Board Rule 300.13” and a supplement to that document providing examples of how the rule has been applied by the Board in denying Applications for Board Review. The Board has also revised its RB-89 forms, for mandatory use by February 1, 2019. The revision of the forms seems to suggest that the sections on the old forms on which the Board based its denials of appeals were unclear and confusing.
The supplemental document references a number of examples of appeals denied by the Board for perceived technical deficits in completion of the RB-89. For example, the Board denied many appeals that stated, “See attached,” a reference to the brief with legal arguments attached to the RB-89 by the appellant. In another, the appellant followed Board rules by providing an explanation as to why the appellant felt it necessary to exceed the eight-page limit on briefs attached to the RB-89, but the Board deemed the explanation insufficient and denied the appeal completely, without addressing the merits. In others, the Board denied appeals for an appellant’s failure to specifically note the objection or exception made at the hearing to the findings and awards from which the appeal was taken, even where the minutes reflect that the exceptions were noted.
The Board also maintains that the RB-89 form, which was previously designated as a cover sheet to the brief supporting the Application for Board Review, is no longer a cover sheet but is now considered the Application for Board Review itself. In other words, as far as the Board is concerned, the legal brief and arguments attached to the RB-89 are only supplements to the RB-89.
The Board’s denial of review on the merits of many timely filed appeals from both carriers and claimants alike based on alleged technical deficiencies in the RB-89 form may violate WCL §23, which requires only that an appellant send a written appeal to the Board within 30 days of the adverse decision from the WCLJ. Moreover, WCL §23 requires that the Board render its decision on the merits in writing. Areas of administrative law, like workers’ compensation, are supposed to offer streamlined access to justice with dispute resolution by an agency with expert knowledge in the field. The Board’s insistence on denying appeals for mere technical deficits in the RB-89 shirks its responsibilities under the statute.
There will be more to come on this topic throughout 2019 as other cases working their way through the appeal process are decided by the Appellate Division. Additionally, we expect that the workers’ compensation bar will lobby for legislative or administrative remedies to rein in the Board’s excesses on this issue.

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