IN RE: the Claim of Kelly A. MCLAUGHLIN (2021)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers' Compensation Board, filed January 14, 2020, which ruled that the employer and its third-party administrator failed to comply with 12 NYCRR 300.13(b) and denied review of a decision by the Workers' Compensation Law Judge.

On December 21, 2018, claimant's husband (hereinafter decedent) died following a cardiac arrest that he experienced while at work, and claimant thereafter filed a claim for workers' compensation death benefits.  The employer and its third-party administrator (hereinafter collectively referred to as the employer) controverted the claim.  A hearing on the death benefits claim ensued, after which a Workers' Compensation Law Judge (hereinafter the WCLJ) determined, among other things, that decedent's death was causally related to his employment and established the claim.  On November 6, 2019, the employer filed an application for review (form RB–89) by the Workers' Compensation Board, contending that it had overcome the presumption of Workers' Compensation Law § 21 and that claimant failed to show sufficient evidence that decedent's death was causally related to his employment.  The Board denied the application for Board review based upon the employer's failure to provide a complete response to question number 15 on that application.  The employer appeals.

We affirm.  We have consistently recognized that “the Board may adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law, and the Chair of the Board may make reasonable regulations consistent with the provisions thereof” (Matter of Randell v. Christie's Inc., 183 A.D.3d 1057, 1059, 123 N.Y.S.3d 742 [2020] [internal quotation marks and citations omitted];  see Matter of Haner v. Niagara County Sheriff's Dept., 188 A.D.3d 1432, 1433, 136 N.Y.S.3d 187 [2020];  Matter of Currie v. Rist Transp. Ltd., 181 A.D.3d 1121, 1122, 121 N.Y.S.3d 407 [2020]).  Those regulations require, in relevant part, 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 [and] ․ must be filled out completely” (12 NYCRR 300.13[b][1];  see Matter of Simon v. Mehadrin Prime, 184 A.D.3d 927, 928, 123 N.Y.S.3d 554 [2020];  Matter of Turcios v. NBI Green, LLC, 182 A.D.3d 964, 965, 120 N.Y.S.3d 879 [2020]).  “Where, as here, a party who is represented by counsel fails to comply with the formatting, completion and service submission requirements set forth by the Board, the Board may, in its discretion, deny an application for review” (Matter of Charfauros v. PTM Mgt., 180 A.D.3d 1132, 1133, 118 N.Y.S.3d 305 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 909, 2020 WL 3467462 [2020];  see 12 NYCRR 300.13[b][4];  Matter of Martinez v. New York Produce, 182 A.D.3d 966, 967, 121 N.Y.S.3d 449 [2020];  Matter of Johnson v. All Town Cent. Transp. Corp., 165 A.D.3d 1574, 1574–1575, 85 N.Y.S.3d 625 [2018]).

At the time that the instant application for Board review was filed, the RB–89 form, as well as the accompanying instructions for that form, unambiguously requested that the applicant specify both “the objection or exception interposed to the ruling” and “the date when the objection or exception was interposed” (Workers' Comp Bd RB–89 Instructions [Nov. 2018];  see 12 NYCRR 300.13[b][2][ii]).  In response to question number 15 on the RB–89 form, the employer stated, “carrier has consistently objected including hearing where claim was established.”  Assuming for the sake of argument that the employer set forth an adequate objection — that is, the establishment of the claim — the employer's response did not provide the date on which such objection or exception was interposed.  As the employer's response was patently defective by not providing the date on which the objection or exception was made, we cannot say that the Board abused its discretion in deeming the employer's response to be incomplete (see Matter of Randell v. Christie's Inc., 183 A.D.3d at 1060, 123 N.Y.S.3d 742;  Matter of Fadul v. Subcontracting Concepts, LLC, 182 A.D.3d 973, 974, 122 N.Y.S.3d 438 [2020];  Matter of Martinez v. New York Produce, 182 A.D.3d at 967, 121 N.Y.S.3d 449).  Further, the employer's “reliance on its attached brief and/or its responses to other questions on the application for Board review does not cure the defective response to question number 15” (Matter of Griego v. Mr Bult's, Inc., 188 A.D.3d 1429, 1431, 135 N.Y.S.3d 519 [2020];  see Matter of Shumway v. Hudson City Sch. Dist., 187 A.D.3d 1299, 1301, 132 N.Y.S.3d 186 [2020];  Matter of Wanamaker v. Staten Is. Zoological Socy., 184 A.D.3d 925, 927 n., 125 N.Y.S.3d 180 [2020];  Matter of Rzeznik v. Town of Warwick, 183 A.D.3d 998, 1000, 123 N.Y.S.3d 263 [2020]).  The employer's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

Pritzker, J.

Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur.