Since October 3, 2016, those who practice before the New York State Workers’ Compensation Board have been compelled to reckon with regulatory amendments that served to dismiss appeals that did not completely and correctly address all issues on the Board-mandated forms for appeals and rebuttals, both seeking review by a Board Panel (Forms RB-89 and RB-89.1) and the Full Board (Forms RB-89.2 and RB-89.3).  See 12 NYCRR 300.13, effective October 3, 2016. 

              Beginning on that date, the Board began placing statements in Board Panel Decisions admonishing parties to appeals that their forms were incomplete, and that they would be reviewed nonetheless, but that “in the future,” the Board would refuse to consider such applications. 

              In Board Memo 046-940, the Board advised all stakeholders that as of May 26, 2017, any RB-89 form not filed by an unrepresented claimant that was not properly completed, would be denied by the Board.  Following that date, a large amount of appeals to the Board Panel was dismissed because the party appealing the decision purportedly failed to indicate on Form RB-89 “when” that party noted its exception to the Law Judge’s decision.

              Traditionally, it has been a knee-jerk reaction to state “note an exception” on the record in response to an adverse ruling or decision.  It was common knowledge that the failure to note an exception could foreclose that aggrieved party’s right to appeal, as the issue was not preserved for review.  Nonetheless, nearly two decades ago, the Appellate Division actually held that there was “no requirement that that a party take an exception from a WCLJ’s adverse ruling on an issue that was raised and litigated before the WCLJ.”  Spector v. NYC Board of Education, 292 A.D.2d 741 (3d Dep’t 2002).  In reliance on this holding, the Board had acknowledged in its own decisions that so long as the issue was “raised and litigated,” there was no requirement to formally note an exception.  St. Johnland Nursing Center Inc., 2014 WL 1302233 (WCB G069 2854 March 27, 2014).   However, when Rule 300.13 was amended, this long-standing rule was abrogated, and the Board took the stance that failure to note an exception on the record at a hearing was fatal to any possible review, notwithstanding the precedent holding to the contrary.

              Despite making this traditional custom an actual requirement to preserve the right to appeal, the Form RB-89 in existence in 2017 contained instructions in Item 15 to “Specify both the objection or exception interposed to the ruling and when it was interposed as required.”  The Board Panel would proceed to dismiss appeals that did not state the specific date that the exception was noted, when more than one hearing had taken place in the claim, despite the fact that (a) the Board was nearly uniformly placed on notice of the decision being appealed from and the hearing at which that decision was rendered; and (b) the instructions never specified that the date on which the exception was noted was required to be stated, but only required the appellant to state “when.”  Accordingly, responses such as “immediately after the Law Judge made the ruling before the conclusion of the hearing,” while completely responsive, resulted in appeals being dismissed.

              Without admitting this ambiguity, effective June 1, 2018, the Board amended all RB-89 Forms, and in the process, changed the language for Item 15 in Form RB-89 to: “Specify both the objection or exception interposed to the ruling AND the date when it was interposed as required.”   Also, on November 23, 2018, the Board’s General Counsel placed on the Board’s website a Guidance Document on the Proper Application of Board Rule 300.13 and Decisional Examples, as well as Board Memo 046-1119, providing clarification as to what the Board would and would not accept.  However, it was clear that these actions were insufficient to prevent earlier dismissals and rejections from surviving review by the Appellate Division.  See Granica v. Town of Hamburg, 181 A.D.3d 1034 (3d Dep’t 2020).

              On May 3, 2019, a bill was introduced in the NYS Assembly Labor Committee to introduce a new Section 23-a to the Workers Compensation Law, which would serve to abrogate Rule 300.13.  A companion bill was introduced in the NYS Senate Labor Committee on May 16, 2019.  Both matters were again simultaneously raised in both houses’ respective Labor Committees on January 8, 2020.  Unfortunately, apparently due to outside events of the year 2020, these bills did not advance further.

              However, on January 6, 2021, a new version of this bill was introduced in the Assembly Labor Committee, titled as A.B. 386.  On the same day, S.B. 829 was introduced in the Senate Labor Committee.  A.B. 386 passed the Assembly on May 13, 2021and referred to the Senate, where it substituted for the Senate Bill, and passed the Senate on June 3, 2021.  It was finally forwarded to the Governor for review on December 10, 2021 and signed into law on December 22, 2021.

              The new statute states that the Workers Compensation Board cannot deny an appeal, or Full Board Review, or rebuttal to either application, due to “a mistake, omission, defect, and/or other irregularity in a cover sheet.”  Instead, the Board must now “permit any such mistake, omission, defect, and/or other irregularity to be corrected within twenty days of written notice,” or “if a substantial right of [either party] is not prejudiced, such mistake, omission, defect, and/or other irregularity shall be disregarded.”  In effect, this serves to substantially limit, if not render moot, Rule 300.13, and thus permit appeals to be decided on their merits.


              Representatives of stakeholders on both sides are cautioned to be aware, however, of the following:

              (1)         Effective Date:  The final clause of this new statute states that Section 23-a will apply to all RB-89 Forms “subsequent to the effective date of this act.”  While the language does not specifically state that it applies only to RB-89 Forms filed subsequent to the effective date of the statute, we anticipate that the Board will most likely argue that this term is implied and continue to apply Rule 300.13 to appeals that were filed, but not yet decided, prior to the effective date.

              (2)         Singular and present tense:  While the title of this new statute describes “Mistakes, Defects, or Irregularities,” in the plural tense, the language of the statute itself references “a mistake, omission, defect, and/or other irregularity,” or “any mistake, omission, defect, and/or other irregularity,” in the singular tense.  Notwithstanding the use of the and/or conjunction, we anticipate that the Board will most likely argue that where they detect more than one issue in an RB-89 Form, that they can rely on Rule 300.13 to deny an appeal because the statute only prevents them from the dismissing the appeal when there is only one mistake, omission, defect, and/or irregularity.  Accordingly, representatives are encouraged to continue to review these forms in detail before they are filed to avoid the likelihood of dismissal.

We further expect the Board to remind us that before the enactment of this new statute, Rule 300.13 effectively reduced the amount of time that appeals remained pending prior to a decision being rendered.

              If so, it should be noted that in 2016, then-Chair Kenneth Munnelly admonished attorneys and representatives to “step up your game” in order to adapt to the regulatory amendments.  We would hesitate to use such language, or tone, in addressing an administrative agency, out of respect.  However, we would not hesitate to note that it is a legitimate goal to ensure that issues on appeal before the Board should be resolved on their merits, rather than on technicalities.  While it is possible that additional time will elapse before appeals are decided, due to a possible increase in volume, it is also possible that this additional time will result in substantive decisions.