The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined it was an abuse of discretion to deny claimant’s application on the ground that a separate copy of the RB-89 form was not submitted for each claim:

We note … that the requirement that a party submit a copy of the RB-89 form when referencing multiple claims, or that failing to provide a copy for each claim could result in review being denied on one of the claims, is not included on the form, in the instructions to the form or in the Board’s regulations. Although the Board may certainly adopt the formatting requirement that applicants provide a copy of their RB-89 form for each claim referenced therein, we find, under the circumstances presented here, that the Board’s denial of claimant’s application for review of the WCLJ’s decision on the 2017 claim for failing to provide the Board with an additional copy of their RB-89 form was an abuse of the Board’s discretion … . Matter of Olszewski v PAL Envtl. Safety Corp., 2022 NY Slip Op 02469, Third Dept 4-14-22

The Third Department, remitting the matter to the Workers’ Compensation Board, determined the Board did not address the basis of the Workers’ Compensation Law Judge’s (WCLJ’s) ruling that claimant was entitled to benefits. Claimant was struck by a vehicle while riding his bicycle to work. Although travel to work is usually not covered by Workers’ Compensation, the WCLJ found that “claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations.” That issue was not addressed by the Board:

In finding that the claim was compensable, the WCLJ found that claimant was engaged in a special errand given that he was traveling for the purpose of an overtime assignment and at a location different from his regular work locations. The Board, however, did not address the exception relied upon by the WCLJ but, instead, found that the outside employee exception did not apply in concluding that the accident did not arise out of or in the course of claimant’s employment. Whether an exception to the general rule applies turns on the Board’s fact-intensive analysis of the particular circumstances of a given case … , and “[t]he courts are bound by the . . . Board’s findings of fact which, including the ultimate fact of arising out of and in the course [of employment], must stand unless erroneous in law and regardless of whether conflicting evidence is available” … . The fact that claimant was not an outside employee, as found by the Board, is not dispositive as to whether the special errand exception applies, which was the basis of the WCLJ’s finding that claimant was entitled to workers’ compensation benefits. As the Board has made no findings of fact with regard to whether the special errand exception applies, the matter must be remitted to the Board for further proceedings in regard to this particular issue…. . Matter of Waters v New York City Tr. Auth., 2022 NY Slip Op 02474, Third Dept 4-14-22

​Practice Point: Although injury while traveling to work is usually not covered by Workers’ Compensation, there are exceptions, including the “special errand” exception which was deemed to apply here by the Workers’ Compensation Law Judge.