IN RE: the Claim of Andre BRITTON (2021)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers' Compensation Board, filed March 8, 2019, which ruled that claimant failed to comply with 12 NYCRR 300.13(b)(1) and denied review of a decision by the Workers' Compensation Law Judge.

Claimant filed a workers' compensation claim, alleging that he was subject to racial discrimination and sexual harassment at work which resulted in psychological injuries.  A Workers' Compensation Law Judge (hereinafter WCLJ) disallowed the claim, finding that claimant failed to credibly establish any diagnosed injuries and disabilities caused by any workplace incidents.  Claimant, who was represented by counsel, filed an application for review by the Workers' Compensation Board (form RB–89).  Finding that claimant failed to use the proper form RB–89, the Board denied review and ruled that the WCLJ's decision remained in effect.  Claimant appeals.

We are unpersuaded that the Board abused its discretion in denying claimant's application for Board review.  Pursuant to the governing regulation, which was revised on October 3, 2016, an application for review of a WCLJ decision is required to “be in the format as prescribed by the Chair [of the Board]” (12 NYCRR 300.13[b][1]).  To that end, “the Chair designated form RB–89 (Application for Board Review), which was revised to conform with the new regulations, as the prescribed format for applications for review” (Matter of Miller v. Mo Maier Ltd., 178 A.D.3d 1250, 1251, 116 N.Y.S.3d 406 [2019] [internal quotation marks and citation omitted]).  In addition, the Chair, on September 29, 2016, issued a bulletin, Subject No. 046–878, advising parties that the revised form RB–89 must be used in seeking Board review, that “[a]fter December 1, 2016, the Board will only accept the modified form[ ]” and that any applications for Board review “using the old form [RB–89] ․ will be denied” (Matter of Miller v. Mo Maier Ltd., 178 A.D.3d at 1251, 116 N.Y.S.3d 406).  “Where a party represented by counsel fails to comply with formatting and other submission requirements adopted by the Board, the Board may, in the exercise of its discretion, deny review of the application” (id. at 1251, 116 N.Y.S.3d 406, citing 12 NYCRR 300.13[b][4][i];  see Matter of Waufle v. Chittenden, 167 A.D.3d 1135, 1136, 87 N.Y.S.3d 748 [2018]).

The record reflects that claimant, who was represented by counsel, did not use the revised, governing form RB–89 when filing an application for Board review, which had been in effect for three years.  As claimant's application did not comply with the format as prescribed by the Chair, we do not find that the Board abused its discretion in denying review, and its decision will not be disturbed (see Matter of Miller v. Mo Maier Ltd., 178 A.D.3d at 1251, 116 N.Y.S.3d 406;  Matter of Waufle v. Chittenden, 167 A.D.3d at 1136, 87 N.Y.S.3d 748;  compare Matter of Johnson v. All Town Cent. Transp. Corp., 165 A.D.3d 1574, 1575, 85 N.Y.S.3d 625 [2018]).  To the extent that claimant contends that the improper filing was due to ineffective assistance of counsel and should be excused, “we need only note that the right to the effective assistance of counsel does not extend to administrative proceedings, except in narrowly defined circumstances not involved here” (Matter of Caballero v. Fabco Enters., 77 A.D.3d 1028, 1029, 909 N.Y.S.2d 167 [2010] [internal quotation marks and citation omitted], lv dismissed 16 N.Y.3d 780, 919 N.Y.S.2d 504, 944 N.E.2d 1143 [2011];  see Matter of Sheikh v. White & Blue Group Corp., 168 A.D.3d 1196, 1199, 90 N.Y.S.3d 704 [2019]).

ORDERED that the decision is affirmed, without costs.

Egan Jr., J.P.

Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.