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Proposed Amendments to 300.13 and 300.14 Will Make Applications for Reopening or Rehearing More Difficult

The Board has proposed changes to Rules 300.14 and 300.13 that will, according to the Board “clarify the process regarding the reopening of a previously closed claim.” In practice, the adoption of these proposed regulations will make it more difficult to obtain a reopening under Rule 300.14.  Under the proposed rule changes, an application for reopening under Rule 300.14 must demonstrate that the application is “in the interests of justice” and it must also comply with the formatting rules for Applications for Board Review described in Rule 300.13. Additionally, any application under the proposed regulations must also show 1) that material evidence is now available that was not available at the time the issue was resolved in the prior decision; or 2) proof of a change in condition material to the issue is involved. 
The proposed rule change also sets a 30-day time limit on the filing of the application for reopening. According to the proposed regulation, the 30 days is measured from the date the applicant has knowledge of the material evidence or proof of change of condition upon which the application is made. The Board will require applicants requesting a reopening based on newly discovered material evidence to provide a sworn affidavit explaining why the evidence was not available when the issue was previously resolved, describing when and how the material evidence was obtained, and setting forth the administrative relief requested. For applications for reopening based on a change in condition, the application must provide a medical report, on a form provided by the Chair, based on an examination after the closing of the case, stating objective findings, and explaining how and when the condition changed. As of this writing the Board’s proposed form is not available. 
The proposed regulations also prohibit an application for reopening or rehearing when the claimant’s cap on permanency benefits under §15(3)(w) has run out (unless, presumably, benefits continue under an extreme hardship redetermination or reclassification with a permanent total or total industrial disability), where an application for reopening was previously denied, or where an application for full Board review has been denied with respect to the same issue. 
For further details and the text of the proposed regulation changes, please see the Board’s website here. Comments on the proposed rule changes will be accepted until 11/10/19. Comments should be submitted via email to regulations@wcb.ny.gov

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