New York: Claimant's Failure to Serve Carrier's Attorney With Application for Board Review Not Fatal

Observing that under 12 NYCRR 300.13[b][2][iv], an application for administrative review, must include proof of service upon "all necessary parties of interest," and that insurance carriers were included in the list of necessary parties of interest, but not their attorneys, a New York appellate court affirmed the Board's determination that a claimant was entitled to workers' compensation benefits for an alleged repetitive injury to his back, based upon the Board's decision, where the worker was unsuccessful at the law judge level, then filed an application for Board review, and served the carrier, but not the carrier's attorney. No one appeared at the review hearing to represent the carrier's interests. The appellate court cast aside its argument that its right to counsel had been unconstitutionally impinged. The court noted that the issue had not been raised at the hearing before the Board (of course, no one had been present to raise such an issue).

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 Muller v. Square Deal Machining, Inc., 2020 N.Y. App. Div. LEXIS 2838 (3d Dept. May 7, 2020)

See generally Larson’s Workers’ Compensation Law, § 124.05.

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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