Can an Order of the Chair be Appealed?

The Board may issue an “Order of the Chair” to address medical treatment variance requests. Orders of the Chair are most commonly issued when a treating medical providers files a variance request and the insurance carrier/self-insured employer fails to reply timely. According to the regulations [12 NYCRR 324.3(c)(6)], Orders of the Chair are not appealable under NY WCL §23.

If an Order of the Chair is not appealable, then how does a party address an adverse order entered by the Board for which their is a basis to argue the Order should be rescinded? i.e. the medical provider faxed the variance request to a wring fax number and the carrier did not get the variance request in order to respond timely. An Order of the Chair is neither an “award” nor a “decision” of the referee (see WCL 23; see also 12 NYCRR 300.13) and is outside the scope of the Board Panel’s review (see Matter of United Parcel Service, 2010 NY Wrk Comp 30303791. See also Matter of Livingston County, 2011 NY Wrk Comp 79905338).

The Board addresses this very issue in Matter of Brentwood School District, ruling:

If an Order of the Chair is defective or was improperly issued, the remedy is to make a written request to the Board for a rescission of the Order of the Chair, with notice to the other parties in interest, which will be addressed administratively by the Board. If it is administratively determined that the Order of the Chair should be rescinded, the Board will do so through a form EC-325.1, Rescission of the Order of the Chair. The Board Panel has no authority to direct that the Order of the Chair be rescinded.

Therefore, if you have reason to take issue with an Order of the Chair, instead of filing an appeal along with an RB-89, you should simply send correspondence to the Board and all parties of interest stating specifically why the Order of the Chair should be suspended.

Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at dgourley@loisllc.com or 201-880-7213.