Board Bulletins and Subject Numbers

April 26, 2017

As part of Part NNN of Chapter 59 Laws of 2017 workers' compensation reform legislation, signed by Governor Andrew Cuomo on April 10, 2017, the New York State Workers' Compensation Board is required to conduct hearings within 45 days of a request under circumstances where the injured worker is out of work and not being paid, as explained below. In this Subject Number, the term "employer" means employer or, if insured, the insurance carrier.

The purpose of this reform is to ensure that a prompt hearing will be held in cases of acute need, where the claimant is not being paid. It is very important to understand when it is appropriate to request such a hearing in order to avoid improper filings and the penalties that could result. These 45-day hearings are set aside for claimants with acute need and are not to be utilized as general purpose hearings to resolve other issues.

When Is a 45-Day Hearing Appropriate?

Under the new language in WCL § 25(2)(a), when a claimant or his or her legal representative files the appropriate form, either Request for Assistance by Injured Worker (Form RFA-1W) or Request for Further Action by Legal Counsel (Form RFA-1LC), and checks the appropriate boxes to state that all of the following are true, the Board will expedite the request to schedule a hearing within 45 days of the Board's receipt of the request.

• A claim for workers' compensation has been filed.
• Medical evidence of work-related injury or illness is submitted.
• Claimant is not working in any capacity.
• Claimant is not otherwise barred from receipt of compensation.
• The employer is not paying the claimant as required by law.
• The employer is not controverting the right to compensation (as there is already an expedited process for controverted claims).
• Claimant or his or her legal representative has attempted to resolve the issue with the employer, yet the claimant is still not being paid

When Is a 45-Day Hearing Not Appropriate?

The employer is required to make payments required by law. This means that payment must be made within 18 days of disability or 10 days of the employer's knowledge of the disability, whichever is longer (WCL § 25[1][b]). Board rule 12 NYCRR 300.23(a) and (b) sets forth the circumstances under which an employer may suspend or reduce benefits, even cases where the claimant is not working. For example, in cases where there is a medical report from the claimant's doctor indicating no disability, or where a claimant becomes incarcerated for a felony, the employer can suspend or reduce benefits. The Board also issues decisions setting forth awards of compensation, which may indicate no continuing payments because there is no compensable lost time.

A 45-day hearing cannot be requested:

• Initially, until the 18 or 10 days set forth in statute have passed.
• If the Board has issued a decision in the case finding no compensable lost time.
• If the claimant is being paid by the employer directly, and the awards which would be made at the hearing would be to reimburse or credit the employer.
• If the claimant is receiving an indemnity payment, even if not the total rate.

Revised Request for Further Action (RFA-1LC and RFA-1W) Forms

Together with this Subject Number, the Board is releasing revised versions of Request for Further Action by Legal Counsel (Form RFA-1LC) and Request for Further Action by Injured Worker (Form RFA-1W).

Form RFA-1LC includes a check box to request a 45-day hearing. To qualify for a 45-day hearing, all the conditions listed next to the hearing request check box must be met. Form RFA-1W has a new check box "a" in Section A under Compensation Payments for the claimant to indicate that he or she is not working and to check the following details that apply:

• I have filed a claim for a work related injury.
• My employer is not paying my wages.
• My claim has not been denied.
• I have not received a decision barring me from compensation.
• I have attempted to resolve the issue with the insurer

Outreach to the employer is a required element. This means that the claimant, or if represented, his or her legal representative, must demonstrate that there was a good faith attempt made to resolve the issue of payment prior to resorting to hearing. Forms RFA-1LC and RFA-1W must set forth that all of the required elements are in place to justify the setting of the 45-day hearing.

Check box "h" has been removed. If the legal representative has not received an attorney/licensed representative's fee as directed by a Decision, the "Other" check box can be used to identify this issue.

Conduct of Hearings, and Consequences for Filing Groundless Requests

A workers' compensation law judge (WCLJ) will conduct the hearing, and evaluate the request and the evidence. If payments are due, they will be ordered by the WCLJ. The WCLJ will order costs and attorney's fees in the amount of $500 per violation, for raising or continuing an issue without reasonable grounds under WCL § 114-a(3) if the request is baseless, premature, or inappropriate. Additionally, in the event of a finding under WCL § 114-a(3), the claimant's legal representative will not receive a fee, even if an award is made, as the inappropriate use of the 45-day hearing request constitutes a waste of judicial resources that should be utilized for appropriate cases.

Note: These penalties will not be imposed against an unrepresented claimant.

WCL § 114-a(3)(i) and (ii) may be imposed where:

• The form is not accurately or completely filled out.
• A claim was not filed, or there is a lack of required medical evidence.
• The requisite time periods in WCL § 25 have not passed. The Board will evaluate the circumstances as they existed at the time the request was sent to the Board. For example, it is inappropriate for a claimant's attorney, as a matter of course, to file Form RFA-1 to request a 45-day hearing when retained by the claimant, without first meeting all the required elements.
• The claim, in whole or part, is controverted.
• There is an existing direction of no further compensable lost time.
• The claimant is not entitled to payments because her or she is not "disabled and not working".
• The claimant's legal representative has not reached out to the employer to make a good-faith effort to resolve the situation.
• The claimant is not out-of-work.
• The claimant seeks to record reimbursement or credit to the employer

In the event that Form RFA-1LC is submitted for a 45-day hearing, and the parties are able to resolve the issue prior to hearing, the parties should inform the Board. If payments are voluntary (i.e., prior to a formal award having been made by the Board), and the employer agrees to commence payments, no formal stipulation is required. If the parties wish to stipulate, or if a stipulation is appropriate because an award has been previously made, the parties should submit the written Stipulation (Form C-300.5) to the Board, and notify the Board that a 45-day hearing is no longer necessary.