Does a Denial of a “Defective” RB-89 Constitute a Denial of Due Process?

Recently, the Workers’ Compensation legal community has seen a series of decisions issued by the Workers’ Compensation Board that seem to mark a change in policy on behalf of the Workers Compensation Board. Specifically, the decisions have focused around one crucial issue- does a party’s failure to properly and fully completely fill out the required form to maintain an application for board review or rebuttal (RB-89 or RB-89.1) render the entire application defective?

In a series of decisions, the Workers’ Compensation Board has seemed to answer the above question with a very short answer. Yes.

In the recent decisions to deny applications for review on procedural grounds, the board has cited to12 NYCRR 300.13(b)(1). 12 NYCRR 300.13(b)(1) provides that an application for review “must be filled out completely” in the form prescribed by the chair. The chair has prescribed that “completion” means that each section or item of the application must be completed with the information requested on the form and pursuant to the instructions for each form. Under this guise, the board has denied the opportunity for review on a variety of procedural defects. See e.g. Employer: Assistcare Home Health Service, 2018 WL 3322412(N.Y.Work.Comp.Bd., decided June 27, 2018) (holding that party’s failure to fill out item 15 of the RB-89 constitutes proper grounds to deny request for review); Employer: Cast & Crew Payroll LLC, 2018 WL 3322498 (N.Y. Work.Comp.Bd., decided June 29, 2018) (holding that the party’s failure to fill out Item 13 of the RB-89 constitutes proper grounds for denial of request for review).

However, does the denial of an application for board review on technical grounds comport with procedural due process? In Kigin, the Court of Appeals defined procedural due process as follows:

Generally, procedural due process principles require an opportunity for a meaningful hearing prior to the deprivation of significant property interest. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and manner.

Matter of Kigin v. State of New York Workers Compensation Board, 24 N.Y.3d 459, 469 [2014] [internal citations omitted].

In the context of Workers’ Compensation, the court in Kigin held that the procedure upon denial of a variance request, which includes a hearing by a workers’ compensation law judge, as well as administrative review that is subject to judicial review, constitutes a meaningful opportunity to be heard.

There is a small dissent on the board regarding the hardline approach being taken and the concerns for due process. In the case of Employer: Suburban Propane LP, 2018 WL 1748736 (N.Y.Work.Comp.Bd., decided March 09, 2018), Commissioner Ursula Levelt, in a concurring opinion, urges her colleagues to adopt a case-by-case approach to procedural defect denials. In doing so, Commissioner Levelt hints that her colleagues are overlooking the auxiliary verb “may” that is contained within the language of 12 NYCRR 300.13[b][4][iv]. Commissioner Levelt notes that this word coveys upon the board discretion in its power to deny review. By using the board’s discretion, Commissioner Levelt argues that “the board can also ensure that its regulations will be upheld by the courts and do not become unreasonable, arbitrary, capricious, or contrary to the statute under which they were promulgated.” Id.

Commissioner Levelt further goes on to discuss that there is a balancing of interest that should be considered. On one end of the spectrum, the issue can be the consideration of a single bill from a medical provider. However, on the other end, there can be significant property interests involved, such as the allowance or disallowance of a claim. Commissioner Levelt urges that cases that involve interest in life or liberty deserve due process.

With the above in mind, those who practice within the realm of workers’ compensation must heed the board’s change in policy direction. Perhaps in the future, the board may adopt a policy to fall in line with the reasoning of Commissioner Levelt. However, it is now imperative that all parties ensure that forms submitted to the board are completed in their entirety and per the directions as issued by the chair to avoid their claim for relief being denied on procedural grounds.

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