PRACTICE TIP: Upon receipt of an appeal from an adverse party, make sure that your counsel carefully scrutinizes the RB-89 (Application for Board Review) form looking for defects in completion of the form which might render the appeal non-reviewable on procedural grounds.
In the case of Perry v. All American School Bus Corp., 181 A.D.3d, 1113 120 NYWCLR 89 (2020), the Appellate Division affirmed a ruling of the Workers’ Compensation Board which denied an Application for Board Review due to the carrier’s failure to properly complete the RB-89. Item Number 15 on the RB-89 requires the applicant to “specify the objection or exception that was interposed to the ruling, and when the objection or exception was interposed.” In response thereto, the carrier merely indicated “at hearing.” Pointing to prior rulings which hold that “the failure to comply with the Board’s formatting and completion requirements may result in the Board exercising its discretion to deny review of the application”, the Appellate Division in Perry affirmed the decision of the WCB which denied the Application for Board Review. The carrier neglected to not only specify the objection which was placed on the record, but also failed to identify the specific hearing where the objection was made.
The severity of the Board’s rules is highlighted by the fact that in Perry, the carrier argued that the totality of the information contained in the appeal, including information provided on the face of the RB-89, was sufficient to adequately notify the Board of the information required at Item 15. The Board and Appellate Division chose to review the response to Item 15 in isolation, resulting in a denial of the appeal. The strict application of these rules can benefit either party as long as the filings of adverse parties are carefully scrutinized. Additional information with regard to this area can be found at the “Forms” tab at the WCB website under the RB-89 document including guidance provided by the WCB and General Counsel’s office.
If you have any questions about this or any other issue, contact David Niefer at (607) 723-0600 or any of the attorneys in our office. If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm. We represent clients throughout New York State and Pennsylvania.
This information is provided for general guidance only. This information should not be used as a substitute for consultation with legal counsel. Each case presents unique facts requiring individual analysis.
