NY Claimant’s Service Upon Third-Party Administrator Was Not Service Upon the Carrier Itself

While it is often said that the procedural aspects of a workers’ compensation dispute are largely informal, with the parties not always being bound to the narrowest interpretations of notice and claim requirements, those procedural requirements cannot be ignored, held a New York appellate court in Matter of Barry v. Verizon N.Y. Inc., 2021 N.Y. App. Div. LEXIS 5113 (3d Dept. Sept. 16, 2021). Accordingly, where the claimant served an application for Board review upon the carrier’s third-party administrator, but not upon the carrier itself, the Board was within its discretion to deny the application on that basis. This was even so where, as here, the carrier had offered no objection to the lack of service.

Background

Claimant sustained significant injuries while at work in 2018 when he slipped on ice, fell backward and hit his head, rendering him unconscious. The employer submitted a First Report of Injury form identifying New Hampshire Insurance Company as its carrier and Sedgwick Claims Management Services, Inc. as the claim administrator. Claimant’s workers’ compensation claim was established for injury to his neck, and awards were made at a temporary total disability rate. The claim was subsequently amended to include PTSD and adjustment disorder with anxiety.

Claimant Serves TPA, but not Carrier

Thereafter, further proceedings were conducted with respect to the permanency of claimant’s condition. Claimant submitted an application for review by the Board of a decision of a WCLJ that directed claimant to demonstrate attachment to the labor market attachment. Claimant served that application on Sedgwick but not on New Hampshire Insurance Company. No challenge to the service issue was raised in the rebuttal application. The Board held in abeyance the WCLJ’s directive, pending development of the record and resolution of the degree of disability.

Claimant Again Fails to Serve Carrier

Subsequently, the WCLJ classified claimant with a PPD and a 90 percent loss of wage-earning capacity. Claimant filed an application for Board review of that decision, again serving Sedgwick but not New Hampshire Insurance Company. No rebuttal to that application was filed. The Board found that claimant did not comply with the requirements of 12 NYCRR 300.13(b) in that he failed to serve New Hampshire Insurance Company, a party in interest, and exercised its discretion to deny review of the WCLJ’s decision. The Board subsequently denied claimant’s subsequent application for reconsideration and/or full Board review. Claimant appealed from both Board decisions.

Appellate Court Decision

The appellate court acknowledged that the application for Board review had been served on Sedgwick and counsel for New Hampshire Insurance Company, but not on the carrier. The court added that from the initial stages of the matter, Sedgwick had been clearly identified as the administrator handling the claim on behalf of the carrier. The court stressed, however, that an administrator does not stand in the shoes of the carrier or constitute a necessary party of interest. It is the carrier itself that is the real party of interest.

The court went on to say that although the record reflected that forms throughout the matter listed Sedgwick as the carrier or the entity to which notice should be sent, that did not obviate the regulatory requirement that the carrier be served with the application for Board review. There was no dispute that the application for Board review was not served on the carrier. As claimant did not comply with the regulatory service requirements, the appellate court found no abuse of discretion in the Board denying review of the WCLJ decision.