senate Bill S1401

Relates to setting a time limit for requesting full board review of unanimous board panel decisions

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 07 / Jan / 2011
    • REFERRED TO LABOR
  • 04 / Jan / 2012
    • REFERRED TO LABOR
  • 12 / Jun / 2012
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 12 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1144
  • 12 / Jun / 2012
    • PASSED SENATE
  • 12 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 12 / Jun / 2012
    • REFERRED TO LABOR

Summary

Relates to setting a time limit for requesting full board review of unanimous board panel decisions.

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Bill Details

See Assembly Version of this Bill:
A6909
Versions:
S1401
Legislative Cycle:
2011-2012
Current Committee:
Assembly Labor
Law Section:
Workers' Compensation Law
Laws Affected:
Amd §§23 & 142, Work Comp L
Versions Introduced in 2009-2010 Legislative Cycle:
S3381, A7680

Sponsor Memo

BILL NUMBER:S1401

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1401

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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 within

 EXPLANATION--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 an

S. 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.

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