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FAILURE TO SPECIFY WHEN THE OBJECTION TO BE REVIEWED WAS MADE IN ANSWER TO QUESTION 15 OF THE APPLICATION JUSTIFIED THE BOARD’S REFUSING TO REVIEW IT, DESPITE THE FACT THAT THE DATE OF THE RELEVANT HEARING WAS INDICATED ELSEWHERE IN THE APPLICATION (SECOND DEPT).

The Third Department determined the Workers’ Compensation Board properly refused the employer’s application for review because the application did not indicate when the objection to be reviewed was made. The application indicated the objection was made at the hearing, but there were several hearings. The fact that the date of the hearing in question was indicated elsewhere in the application did affect the validity of the Board’s ruling:

The pertinent regulation, as well as the instructions in effect at the time that the employer filed its application for review, unambiguously required the employer to “specify the objection or exception that was interposed to the ruling [of the Workers’ Compensation Law Judge], and when the objection or exception was interposed” … . In response to question number 15 on the application for Board review, the employer set forth the specific objection but, in answering when such objection was interposed, indicated “at the hearing on the record.” As noted by the Board, because there were multiple hearings held in this matter, we cannot say that the Board abused its discretion in deeming the employer’s response to question number 15 to be incomplete based upon its failure to specify when such objection was interposed in order to satisfy the temporal element of the regulation …. Further, the fact that the date of the hearing at which the objection or exception was allegedly interposed appeared elsewhere on the application did not obviate the requirement for the employer to provide a complete response to question number 15, as the Board was not required to deduce when the employer’s objection or exception was interposed … . Matter of Rzeznik v Town of Warwick, 2020 NY Slip Op 02702, Second Dept 5-7-20

 

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