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Board Clarifies ยง15(8) Reimbursement Process Following Board Panel Decisions in Express Solutions and Southco

Our readers will recall our article last month discussing the Express Solutions and Southco Board Panel decisions which not only established the Board’s jurisdiction for determining §15(8) reimbursement issues, but also set out the appropriate procedure for payors to follow in obtaining reimbursement for qualifying expenses under §15(8). The Board has clarified the procedure discussed in Express Solutions and provided new forms for requesting reimbursement in Subject No. 046-1063, issued earlier this month.

Beginning 6/1/18, employers and carriers (payors) must use the new forms to seek reimbursement under WCL §15(8). They are:

The Subject Number also clarifies some ambiguities in the procedure detailed in the Express Solutions decision. Specifically, it notes that an employer or carrier disputing a reduction in a reimbursement request can submit a request for reconsideration on the C-251.6 form via email to SpecialFunds@wcb.ny.gov within 60 days of the date marked on the Special Funds Group’s response (Form C-251R or C-251.1R). At that point, “senior SFG staff not integral to the original review” will review the reimbursement request and any additional documentation submitted and then email a response to the employer or carrier with the “final determination” of the SFG regarding the reimbursement request.

If the employer or carrier disputes the reconsideration made by SFG, it may file an RFA–2 within 30 days of the date marked on the reconsideration form. The SFG response must be attached to the RFA–2. For now, until the Board modifies Form RFA-2, employers and carriers are instructed to use the box marked “other” and state that the purpose of the request is “Desk review of SFG Decision Form C-251.6R”). Clearly, the Board is trying to avoid hearings before a WCLJ for consideration of these review requests.

Subject No. 046-1063 also details a new procedure for formalizing the establishment of §15(8) liability in cases where a §15(8) claim is pending but has not yet been found to apply. We suspect that there are not many cases left in the system where this new procedure will be applicable, given the closure of the §15(8) fund to new claims nearly 10 years ago. Nevertheless, in such cases, the Board requires the requesting carrier to email a document of no greater than one page specifying eCase Document ID numbers for all documents in the Board eCase file submitted prior to 7/1/2010 that support the carrier’s request for §15(8) relief, along with a “no more than one sentence description” of how each document cited from the electronic Case folder meets each essential element of §15(8) relief (e.g., “Timely Submitted Form C-250”; “M&S Statement”; etc.).

Upon receipt of the document, the SFG will either advise the payor of its voluntary acceptance of §15(8) liability or request a hearing.

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