Relates to setting a time limit for requesting full board review of unanimous board panel decisions.
Ayes (59): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Storobin, Valesky, Young, Zeldin
Excused (3): Espaillat, Huntley, Krueger
TITLE OF BILL: An act to amend the workers' compensation law, in relation to setting a time limit for requesting full board review of unanimous board panel decisions
PURPOSE: This bill sets a 3D-day time limit for requesting review by the full Board of a unanimous Workers' compensation Board panel decision, and bars applicants who request review by the full Board from merely resubmitting the same application for review they had presented to the Boardpanel.
SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill amends Workers' compensation Law § 23 to apply the 30-day time limit for appeals to both appeals from a divided panel ("mandatory" appeals) and appeals from a unanimous panel ("discretionary" appeals). It further requires that any appeal to the full Board must raise arguments concerning the deficiencies of the panel's decision.
Section 2 of the bill amends workers' compensation Law § 142(2) to require that a discretionary appeal be made in conformity with Workers' Compensation Law § 23.
Section 3 of the bill provides that the bill will apply to all requests for review of panel decisions issued ninety or more days after the effective date.
EXISTING LAW: The Workers' compensation Law allows a party in interest to appeal from a decision of a panel of the Board, where there is a dissent, within thirty days of the filing of the decision with the Board's secretary. This is known as "mandatory" review since the Board must review the decision. The statute does not require that the application point to errors in the panel decision, nor does it specifically address requests for full Board review of unanimous Board panel decisions. Appeal from a unanimous decision is permitted under Workers' Compensation Law § 123, which provides for the Board's continuing jurisdiction over cases, and workers' compensation Law § 142(2), which states that the decision of a Board panel shall be final except "on application by a party in interest" for a Board review. Review of such an appeal is known as "discretionary" because it is within the Board's discretion to accept or decline requests for full Board review of unanimous decisions. There is currently no time limit for parties to request discretionary full Board review.
PRIOR LEGISLATIVE HISTORY: 2009 - Died in Labor Committee 2010 - Died in Labor Committee
STATEMENT IN SUPPORT:
Under current law, those who appeal a Board panel's decision as of right when there is a dissent on the panel have only 30 days to do so. There is no time limit, however, on parties seeking discretionary review of unanimous Board panel decisions. This results in the anomaly that losing parties have more time to appeal a unanimous decision than they have to appeal a Board panel decision where they were able to persuade one of the three members that their position was correct. As a result, discretionary appeals sometimes are filed with the Board months after a panel decision. This bill would provide the same 3D-day time limit for requesting discretionary full board review of unanimous Board panel decisions as currently applies for requesting mandatory full Board review of panel decisions where there is a dissent.
This bill also addresses a separate problem with appellate review by the full Board. At present, many appellants who request full Board review from either unanimous or 2-1 Board panel decisions simply resubmit the application they had submitted to the Board panel with a cover letter, essentially seeking two bites of the apple with no arguments or analysis addressing the intervening Board panel decision. Such additional filing requires virtually no cost or effort, but adds significantly to the workload of the Board. The bill remedies this problem by requiring that the application for Board review specifically address the panel decision.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: The bill takes effect immediately and will apply to all requests for review by the full Board from decisions of a panel issued after the 90th day the bill becomes a law.
STATE OF NEW YORK ________________________________________________________________________ 1401 2011-2012 Regular Sessions IN SENATE January 7, 2011 ___________Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to setting a time limit for requesting full board review of unanimous board panel decisions THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 23 of the workers' compensation law, as amended by chapter 6 of the laws of 2007, is amended to read as follows: S 23. Appeals. An award or decision of the board shall be final and conclusive upon all questions within its jurisdiction, as against the state fund or between the parties, unless reversed or modified on appeal therefrom as hereinafter provided. Any party may within thirty days after notice of the filing of an award or decision of a referee, file with the board an application in writing for a modification or rescis- sion or review of such award or decision, as provided in this chapter. The board shall render its decision upon such application in writing and shall include in such decision a statement of the facts which formed the basis of its action on the issues raised before it on such application. Within thirty days after notice of the decision of the board upon such application has been served upon the parties, or within thirty days after notice of an administrative redetermination review decision by the chair pursuant to subdivision five of section fifty-two, section one hundred thirty-one or section one hundred forty-one-a of this chapter has been served upon any party in interest, an appeal may be taken ther- efrom to the appellate division of the supreme court, third department, by any party in interest, including an employer insured in the state fund; provided, however, that
[if the decision or determination was that of a panel of the board and there was a dissent from such decision or determination other than a dissent the sole basis of which is to refer the case to an impartial specialist,]any party in interest may withinEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02858-01-1 S. 1401 2
thirty days after notice of the filing of the board panel's decision with the secretary of the board, make application in writing for review thereof by the full board,
[and]RAISING ARGUMENTS RELATIVE TO THE ALLEGED DEFICIENCIES OF THE BOARD PANEL DECISION. IF THE DECISION OR DETERMINATION WAS THAT OF A PANEL OF THE BOARD AND THERE WAS A DISSENT FROM SUCH DECISION OR DETERMINATION OTHER THAN A DISSENT THE SOLE BASIS OF WHICH IS TO REFER THE CASE TO AN IMPARTIAL SPECIALIST, the full board shall review and affirm, modify or rescind such decision or determi- nation in the same manner as herein above provided for an award or deci- sion of a referee. IF THE DECISION OR DETERMINATION WAS THAT OF A UNAN- IMOUS PANEL OF THE BOARD, OR THERE WAS A DISSENT FROM SUCH DECISION OR DETERMINATION THE SOLE BASIS OF WHICH IS TO REFER THE CASE TO AN IMPAR- TIAL SPECIALIST, THE FULL BOARD MAY IN ITS SOLE DISCRETION REVIEW AND AFFIRM, MODIFY OR RESCIND SUCH DECISION OR DETERMINATION IN THE SAME MANNER AS HEREIN ABOVE PROVIDED FOR AN AWARD OR DECISION OF A REFEREE. Failure to apply for review by the full board shall not bar any party in interest from taking an appeal directly to the court as above provided. The board may also, in its discretion certify to such appellate division of the supreme court, questions of law involved in its decision. Such appeals and the question so certified shall be heard in a summary manner and shall have precedence over all other civil cases in such court. The board shall be deemed a party to every such appeal from its decision upon such application, and the chair shall be deemed a party to every such appeal from an administrative redetermination review decision pursuant to subdivision five of section fifty-two of this chapter. The attorney general shall represent the board and the chair thereon. An appeal may also be taken to the court of appeals in the same manner and subject to the same limitations not inconsistent herewith as is now provided in the civil practice law and rules. It shall not be necessary to file exceptions to the rulings of the board. An appeal to the appel- late division of the supreme court, third department, or to the court of appeals, shall not operate as a stay of the payment of compensation required by the terms of the award or of the payment of the cost of such medical, dental, surgical, optometric or other attendance, treatment, devices, apparatus or other necessary items the employer is required to provide pursuant to section thirteen of this article which are found to be fair and reasonable. Where such award is modified or rescinded upon appeal, the appellant shall be entitled to reimbursement in a sum equal to the compensation in dispute paid to the respondent in addition to a sum equal to the cost of such medical, dental, surgical, optometric or other attendance, treatment, devices, apparatus or other necessary items the employer is required to provide pursuant to section thirteen of this article paid by the appellant pending adjudication of the appeal. Such reimbursement shall be paid from administration expenses as provided in section one hundred fifty-one of this chapter upon audit and warrant of the comptroller upon vouchers approved by the chair. Where such award is subject to the provisions of section twenty-seven of this article, the appellant shall pay directly to the claimant all compensation as it becomes due during the pendency of the appeal, and upon affirmance shall be entitled to credit for such payments. Neither the chair, the board, the commissioners of the state insurance fund nor the claimant shall be required to file a bond upon an appeal to the court of appeals. Upon final determination of such an appeal, the board or chair, as the case may be, shall enter an order in accordance therewith. Whenever a notice of appeal is served or an application made to the board by the employer or insurance carrier for a modification or rescission or review of anS. 1401 3
award or decision, and the board shall find that such notice of appeal was served or such application was made for the purpose of delay or upon frivolous grounds, the board shall impose a penalty in the amount of five hundred dollars upon the employer or insurance carrier, which penalty shall be added to the compensation and paid to the claimant. The penalties provided herein shall be collected in like manner as compen- sation. A party against whom an award of compensation shall be made may appeal from a part of such award. In such a case the payment of such part of the award as is not appealed from shall not prejudice any rights of such party on appeal, nor be taken as an admission against such party. Any appeal by an employer from an administrative redetermination review decision pursuant to subdivision five of section fifty-two of this chapter shall in no way serve to relieve the employer from the obligation to timely pay compensation and benefits otherwise payable in accordance with the provisions of this chapter. Nothing
[herein]contained IN THIS SECTION shall be construed to inhibit the continuing jurisdiction of the board as provided in section one hundred twenty-three of this chapter. S 2. The opening paragraph of subdivision 2 of section 142 of the workers' compensation law, as amended by chapter 608 of the laws of 1989, is amended to read as follows: 2. Any review, hearing, rehearing, inquiry or investigation required or authorized to be conducted or made by the workers' compensation board may be conducted or made by any panel of the board consisting of not less than three members thereof, and the order, decision or determi- nation of a majority of the members of a panel shall be deemed the order, decision or determination of the board from the date of filing thereof with the secretary of the board, unless the board on its own motion, or on application by a party in interest for a full board review MADE IN ACCORDANCE WITH SECTION TWENTY-THREE OF THIS CHAPTER, shall modify or rescind such order, decision or determination. Four panels shall be constituted at all times, and the chair shall assign the members to the panels upon which they shall serve. At least one member on each panel shall be an attorney and counsellor-at-law, but the absence of an attorney on any panel shall not invalidate the order, decision or determination of a majority of the members of the panel if at least two affirmative votes are cast in favor of such action. The panels shall be constituted so that the members of the board shall alternate in their periods of service together thereon. Whenever a number of proceedings remains pending before the board for a period in excess of thirty days, members of the board shall hold hearings and otherwise act in the discharge of their duties evenings and at other convenient times on all days of the week except Sundays, in addition to the times when they would perform such duties in the ordinary conduct of the business of the board, in order to expedite the disposal thereof. The chair may and shall, when directed by the governor, prescribe the hours and the times for such additional performance of duty by the members of the board and the period or periods for the continuance ther- eof. S 3. This act shall take effect immediately and shall apply to all requests for review by the full board from decisions of a panel of a board issued after the ninetieth day after it shall have become a law.