IN RE: the Claim of Bernard J. WAUFLE (2018)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers' Compensation Board, filed July 14, 2017, which, among other things, denied applications by Robert Chittenden to review a decision by the Workers' Compensation Law Judge for failure to comply with 12 NYCRR 300.13(b).

Claimant, a route merchandiser who delivered and stocked bread products, filed an amended claim for workers' compensation benefits alleging that he was injured during the course of his employment for Robert Chittenden, a distributor who was an independent contractor responsible for delivering baked goods and bread products for Bimbo Bakeries USA, Inc. According to claimant, he sustained injuries to his left leg and foot when a customer driving an electric cart struck him and pinned his left leg and foot against a shelving rack.  Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) found, in a December 1, 2016 decision, that, among other things, an employer-employee relationship existed between claimant and Chittenden and established the claim.¹  On December 29, 2016, Chittenden's counsel sought Workers' Compensation Board review by submitting an incorrect RB–89.2 cover sheet and “Application for Reconsideration/Full Board Review.”  On January 11, 2017, Chittenden attempted to cure the defective filing by submitting an application for review using the proper form.  Finding that the original application was defective because it did not utilize the proper Board-designated form and that the subsequent submission was untimely, the Board denied consideration of Chittenden's applications.  Upon review of the issues raised by the Uninsured Employers' Fund, which also sought review of the WCLJ's decision, the Board affirmed the decision of the WCLJ. Chittenden appeals.

We affirm.  In addition to the requirement that a party seeking review of a WCLJ's decision file an application for review with the Board within 30 days of the filing of said decision (see 12 NYCRR 300.13[b][3][i];  Matter of Levine v. Incorporated Vil. of Freeport, 154 A.D.3d 1044, 1045, 60 N.Y.S.3d 848 [2017] ), the Board's regulations provide that “an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [of the Board]” (12 NYCRR 300.13[b][1];  see Matter of Levine v. Incorporated Vil. of Freeport, 154 A.D.3d at 1045, 60 N.Y.S.3d 848;  see also 12 NYCRR 300.13[a][3];  [b][3][iii];  Employer:  Feher Rubbish Removal, 2018 WL 3203290, *2, 2018 N.Y. Wrk. Comp. LEXIS 5738, *3–4 [WCB No. 6040 1515, June 26, 2018] ).  The Chair of the Board has designated forms RB–89, Application for Board Review, and RB–89.1, Rebuttal of Application for Board Review, as the prescribed format for applications and rebuttals (see Employer:  Leuner Inc., 2018 WL 1748429, *2, 2018 N.Y. Wrk. Comp. LEXIS 1950, *3 [WCB No. 3070 1043, Mar. 2, 2018] ).²  In this regard, the Board may deny an application for review where the party seeking review, “other than a claimant who is not represented, does not comply with prescribed formatting, completion and service submission requirements” (12 NYCRR 300.13[b][4][i];  see Employer: Wegmans, 2017 WL 4704594, *1, 2017 N.Y. Wrk. Comp. LEXIS 12095, *3 [WCB No. G073 5662, Oct. 4, 2017] ).

The record reflects, and the parties do not dispute, that Chittenden, who was represented by counsel, filed an incorrect RB–89.2 “Application for Reconsideration/Full Board Review” form on December 29, 2016 – nearly one month after the deadline for using the revised RB–89 form went into effect.  As the application was clearly defective, the Board did not abuse its broad discretion in refusing to consider it (see 12 NYCRR 300.13[b][4][i];  Matter of Levine v. Incorporated Vil. of Freeport, 154 A.D.3d at 1045–1046, 60 N.Y.S.3d 848;  cf. Matter of Levine v. Health First [HF Mgt. Servs. LLC], 147 A.D.3d 1193, 1194–1195, 47 N.Y.S.3d 487 [2017];  compare Matter of Johnson v. All Town Cent. Transp. Corp., 165 A.D.3d 1574, 1575, 85 N.Y.S.3d 625 [2018] ).³  Further, we reject Chittenden's related argument that the Board should have exercised its broad discretion to consider his untimely January 2017 application for review using the proper RB–89 form (see 12 NYCRR 300.30;  Matter of You Cai Zhang v. Tony's Marble & Granite Supply Corp., 95 A.D.3d 1510, 1510–1511, 945 N.Y.S.2d 769 [2012];  Matter of Giancola v. Eagle Elec. Mfg. Co., Inc., 13 A.D.3d 824, 825, 787 N.Y.S.2d 167 [2004], lv dismissed 5 N.Y.3d 783, 801 N.Y.S.2d 802, 835 N.E.2d 662 [2005];  Matter of Priola v. Andrews Staffing, 305 A.D.2d 900, 901–902, 758 N.Y.S.2d 863 [2003] ), as “the Board's exercise of such power is an inherently discretionary act” (Matter of D'Addio v. Peter Annis, Inc., 105 A.D.3d 1113, 1114–1115, 962 N.Y.S.2d 794 [2013];  see 12 NYCRR 300.13[b][4][ii];  Matter of Szokalski v. A–Val Architectural Metal Corp., 156 A.D.3d 1276, 1276, 65 N.Y.S.3d 816 [2017];  Matter of You Cai Zhang v. Tony's Marble & Granite Supply Corp., 95 A.D.3d at 1511, 945 N.Y.S.2d 769).  Accordingly, in view of the foregoing, we find no basis upon which to disturb the Board's decision.

ORDERED that the decision is affirmed, without costs.

FOOTNOTES

1.   The WCLJ also found that, on the date of the accident, Chittenden was uninsured and therefore in violation of Workers' Compensation Law § 50.

2.   On September 29, 2016, the Chair of the Board issued a bulletin, Subject No. 046–878, advising parties seeking Board review that they must use a revised RB–89 form and that, “[a]fter December 1, 2016, the Board will only accept the modified form[ ].”  The bulletin further cautions that any applications for Board review “using the old [RB–89] form ․ are not in the prescribed format and will be denied.”

3.   We note that the Attorney General has filed a responding brief on behalf of the Board, expressly taking the position that the Board's refusal to consider Chittenden's defective application was a proper exercise of its broad discretion (compare Matter of Johnson v. All Town Cent. Transp., Corp., 165 A.D.3d at 1575 n., 85 N.Y.S.3d 625).

Clark, J.

Garry, P.J., Devine, Aarons and Pritzker, JJ., concur.