Failure to Notify Carrier Curbs N.Y. Worker’s Push for Board Review

Frank Ferreri

New York, NY ( — Procedural missteps stopped a New York worker’s case from being reviewed after a workers’ compensation law judge made his decision in the case.

In Matter of Barry v. Verizon New York Inc., No. 532354 (N.Y. App. Div. 09/16/21), the worker’s neglecting to ensure that the employer’s carrier — and not just its claims administrator — received the proper notice documents defeated his efforts to have his case reviewed.

Necessary Parties

A worker for Verizon slipped on ice at work, causing him to fall backward and hit his head, rendering him unconscious. The worker’s claim was established for injury to his neck, and awards were made at a temporary total disability rate. Later, the claim was amended to include post-traumatic stress disorder and adjustment disorder with anxiety.

Following further proceedings, the workers’ compensation law judge classified the worker with a partial disability and a 90 percent loss of wage-earning capacity. On the Workers’ Compensation Board’s review, the board found that the worker did not comply with New York requirements in that he failed to serve Verizon’s carrier, so the board denied review of the WCLJ’s decision.

The worker appealed to court, arguing that the board erred in denying his application because the carrier held out Verizon’s claims administrator as the proper entity to be served in connection with the worker’s case.

Under New York law, necessary parties of interest are defined as “claimants, self-insured employers, private insurance carriers, the state insurance fund, special funds, no-fault carriers per or any surety, including but not limited to the uninsured employer’s fund, and the liquidation bureau.” Additionally, state regulations provide that the failure to properly serve a necessary party “shall be deemed defective service and the application may be rejected by the” board.

Standing in the Shoes?

The court found the worker’s argument unavailing, explaining that a claims administrator “does not stand in the shoes of the carrier or constitute a necessary party of interest.” Although forms in the case indicated that the administrator was the carrier, the court explained that this did not change the regulatory requirement that the carrier be served with the application for board review.

Because the application for board review was not served on the carrier, the court affirmed the board’s decision denying review of the WCLJ’s ruling.

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