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CLAIMANT ADEQUATELY IDENTIFIED THE RULING OBJECTED TO IN HER APPLICATION FOR BOARD REVIEW; HER APPLICATION SHOULD NOT HAVE BEEN REJECTED ON THAT GROUND (THIRD DEPT).

The Third Department, reversing the Worker’s Compensation Board, determined claimant’s application for Board review should not have been rejected based upon claimant’s answer to question 15 which asks for the the specific ruling objected to:

Claimant filed her application for Board review … and question number 15 on the form RB-89 application and the accompanying instructions directed her to “[s]pecify the objection or exception interposed to the [WCLJ’s] ruling and when it was interposed as required by 12 NYCRR 300.13 (b) (2) (ii)” … . Claimant responded by stating that “an exception was noted at the hearing on [January 11, 2018],” that the WCLJ had noted that exception in his decision and that the “objection [was] continued by way of” the application for Board review. The Board found that this response was deficient because it failed to identify the exception. This finding overlooked the information already provided in the application for Board review, however, as claimant made clear in her responses to question numbers 11 and 12 that the challenged ruling was the finding of “no compensable disability” from May 10, 2017 to November 27, 2017 and that the issue was whether the WCLJ had erred in crediting certain medical testimony to make that ruling. Claimant identified the ruling at issue in those responses and, by citing the “exception” continued in her “application for review,” her response to question number 15 unambiguously referred to the ruling named in her prior responses so as to provide the information required by 12 NYCRR 300.13 (b) (2) (ii) and demanded by the form instructions … . Matter of Narine v Montefiore Med. Ctr., 2020 NY Slip Op 02142, Third Dept 4-2-20

 

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