Solutions to Common Problems
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Rebuttals: A Waste of Time & Money?
If an appeal is late pursuant to WCL §23, why is it not denied on that basis? This would eliminate the need for the respondent and the WCB to spend the time and money necessary to issue a rebuttal.
The Problem:
For several years, some commissioners rejected proposed decisions because the writers in the Office of Appeals (OoA) were making mistakes regarding their definition of what was a late appeal and/or rebuttal.
General Construction Law §25 states that a legal due date falling on a Saturday or Sunday was automatically moved to the next Monday (unless that Monday was a legal holiday), but the OoA quite often misstated the timeliness of appeals and rebuttals.
Sometimes, if the 30th day was a Saturday, the appeal/rebuttal was denied as being late. Sometimes if it arrived on August 1st for a decision filed July 1st, it was defined as ‘timely’ despite that fact July has 31 days. Even an Appellate Court reversal did not impact sufficiently on the WCB for the OoA and the majority of commissioners to bother to count 30 days.
The Insider offered the OoA an Excel spread sheet in which the date of the filing would be entered and it would calculate the 30th day, allowing for not only weekends but also for holidays.
With the changes in management of the OoA in early 2008, the writers apparently were informed that they had to pay attention to the 30th day but could still allow late appeals per §123, “in the interest of justice”. However, a few commissioners objected to this leniency if for no other reason that it was applied inconsistently.
Some appeals as late as four months after the filing date were accepted without any explanation as to why they were filed late. In other cases, commissioners decided to automatically reject an appeal or rebuttal filed on the 31st day unless some very good justification was given in the opening paragraph of the appeal/rebuttal.
The Administrative Review Bureau (formerly the OoA) then decided that it would accept as timely some but not all appeals that were one day late, positing that the lateness was due to WCB mail room problems. One commissioner responded, “Fix the mail room problem and find the 31st day as late.” And the Insider added, “The phrase ‘in the interest of justice’ is a preamble to an explanation, not a justification ‘in and of itself’.” And several commissioners continued to reject appeals late by one day. 99.99% of all appeals are filed timely. There is no reason that late appeals and rebuttals should be entertained without good and clearly defined cause, not for the issue but for the reason for the lateness.
The Solution:
The WCB should adopt the policy that any appeal or rebuttal filed on the 31st day is late and automatically denied. In the case of appeals, the respondent could limit their rebuttal solely to the statement, “We ask that the appeal be denied pursuant to WCL §23 as it has been filed late. The underlying decision was filed on …… and the 30 day deadline was ……. The appeal, having been filed …, is therefore late.”
The respondent would be saved the time and money involved in writing what is often a lengthy rebuttal. And the WCB would also save the time needed to perform an in depth review of the late appeal, to draft a decision based on the issues raised in the late appeal, and to address all the issues in the rebuttal.
In cases where the appellant can give a legitimate reason for the late appeal – such as the aftermath of 9/11 when many Board deadlines were waived or some other major problem in the appellant’s office –then the WCB should advise the respondent that the appeal is being accepted and should give the respondent 30 days from the date of that letter to issue a rebuttal. For late rebuttals, the same procedure would apply.
While this may involve only 10 to 15 appeals a month out of the 1200 or so submitted for review, it is still 10 to 15 cases less for the WCB and a first step in speeding up case resolution. Remember Mao Tse-Tung: “A march of a thousand miles starts with a single step.” A case here and a case there and, the next thing you know, case resolution has been shorted by a few weeks.
As is the case with so many potential solutions to problems facing the Board, any real solution to this problem will require the Board to make a commitment to be consistent on this issue.
Better practices by all the parties to a dispute can only help make the system better. Also, its important that everyone who relies on the system can feel confident that there is some genuine reasoning behind the way it functions. And insure that when a deadline has come and not timely appealed, all the parties know that, at least for one issue if not the entire case, the matter is finally closed.
The Insider’s book, Behind The Closed Doors, Chapter 14 ‘Both Sides of the Coin’ goes into more detail as to the confusion from which the Board suffers on this and other issues.
