New York Codes, Rules and Regulations
Title 12 - DEPARTMENT OF LABOR
Chapter V - Workers' Compensation
Subchapter A - General Provisions
Part 308 - Employer Compliance, Enforcement, Record And Report Requirements And Stop-work Orders
Section 308.5 - Redetermination review of a stop-work order

Universal Citation: 12 NY Comp Codes Rules and Regs ยง 308.5

Current through Register Vol. 46, No. 12, March 20, 2024

(a) Employers who are issued a stop-work order may challenge such stop-work order on the basis that it was issued in error.

(b) To challenge a stop-work order issued against it, the employer must apply for a redetermination review of the stop-work order by filing a redetermination application with the office of the secretary of the board within 30 days after the employer receives notice of the issuance of the stop-work order.

(c) A redetermination application shall be in writing, shall specify the grounds for such review, and shall be accompanied by a properly executed and sworn affidavit setting forth the relevant facts which form the basis of the redetermination application, made by a person having direct knowledge of those facts.

(d) All redetermination applications shall be referred to a Workers' Compensation Law Judge or Senior Workers' Compensation Law Judge designated by the chair (hereinafter designated judge) for consideration.

(e) Upon receipt of a redetermination application, the designated judge shall forward a copy of the redetermination application to the representative of the Uninsured Employers' Fund appointed by the chair pursuant to Workers' Compensation Law, section 26-a(5) (hereinafter UEF representative), and shall direct the UEF representative to serve upon the designated judge and the employer, or its legal representative, copies of all evidentiary material which served as the basis for the issuance of the stop-work order, within five business days of receiving the direction.

(f) The designated judge shall review the redetermination application and the evidentiary material submitted by the UEF representative and shall determine within 10 business days whether disputed issues of fact exist which are sufficient to warrant an evidentiary hearing.

(1) If the designated judge determines that an evidentiary hearing is not warranted, the designated judge will notify the employer, or its legal representative, and the UEF representative that the record is closed and that a written decision will be issued based on the evidence submitted, without an evidentiary hearing.

(2) If the designated judge determines that an evidentiary hearing is warranted, a notice of hearing shall be sent to the employer, or its legal representative, and the UEF representative indicating the date, time and place of the hearing and demanding that the employer, or its legal representative, and the UEF representative serve upon the opposing party and the designated judge at least five business days before the scheduled hearing:
(i) a list of witnesses the party intends to produce at the hearing and whether those witnesses require an interpreter;

(ii) all documentary evidence the party intends to introduce at the hearing that is not contained in the redetermination application or the evidentiary material submitted by the UEF representative that served as the basis for issuing the stop-work order and therefore already part of the record.

(g) After the record is closed the designated judge shall render a decision in writing on the issues raised in the redetermination application which shall include a statement of the facts which formed the basis of designated judge's conclusions within 15 business days. The decision shall be served upon the parties and shall be the final determination of the chair. Either party may take an appeal to the Appellate Division of the Supreme Court, Third department, pursuant to Workers' Compensation Law, section 23.

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