New York: Amendment of Regulation Regarding RB-89 Cannot Be Retroactively Applied

In another decision dealing with New York's Form RB-89 (Application for Board Review), a state appellate court found the Board had abused its discretion in denying a carrier's Application for Board Review on the basis that the carrier had failed, within its answer to Question 15, to specify the date of the hearing at which the carrier had interposed its objection. The appellate court observed that at the time of the carrier's Application (i.e., June 2018), the regulation (12 NYCRR 300.13[b][1]) merely required the applicant to state, as pertinent here, "when" the objection or exception was interposed; it did not then require that a date be specified. In November 2018, the Board amended the rule by replacing "when" with the requirement that the specific date be indicated. The court noted that the carrier's response had provided temporal information about its objection; it just had failed to name the date of the hearing. The appellate court said the Board could hardly require the carrier to abide by a rule that it had not yet established.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Mone v. Deer Park Sand & Gravel Corp., 2020 N.Y. App. Div. LEXIS 2300 (3d Dept. Apr. 9, 2020)

See generally Larson’s Workers’ Compensation Law, § 124.08.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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