The "You Filled Out the Form Wrong" Play — and How a Store Manager's Two Blank Boxes Almost Cost Her Everything

Workers’ Compensation Defense Playbook Decoded — covering decisions handed down May 28, 2026

The Third Department dropped a fresh batch of workers’ comp decisions, and one of them is the kind of case that should make every injured worker in New York sit up. Not because the injury is dramatic. Because of how close a worker came to losing her appeal over something that had nothing to do with the merits of her case — two blank boxes on a cover form.

The case is Matter of Price v. Premium Brands OPCO, LLC (CV-25-0913, decided May 28, 2026).

If you have ever appealed — or might someday appeal — a decision in your workers’ comp case, read this one. The paperwork that gets you to the Board is its own little minefield, and the carrier knows it.

Setup: A trip, a fall, and a partial win

Jennifer Price was an assistant manager at a retail store. In November 2023 she tripped and fell at work. She filed for workers’ compensation.

The Workers’ Compensation Law Judge gave her a partial win. The Judge established her claim for the injury to her cervical spine — her neck. But the Judge found she had not put in enough medical proof for an alleged injury to her left knee, so that part was denied.

A partial win is still a partial loss. Price wanted the knee, so she did what the rules allow: she filed an application for the Workers’ Compensation Board to review the Judge’s decision. In New York that application is a form. It’s called the RB-89. Remember those three characters, because the whole case turns on them.

Defense Move: Skip the merits, attack the cover sheet

Here is the play, and it is one of the quietest, most underrated weapons in the entire defense playbook.

When a worker appeals, the carrier has two ways to fight. It can argue the worker is wrong on the merits — the harder, more expensive road. Or it can comb the worker’s RB-89 for a clerical defect and ask the Board to throw the whole appeal out without ever reaching the merits. No doctors. No argument about the knee. Just: she filled out the form wrong, so she doesn’t get to be heard.

That is exactly what happened here. On her RB-89, Price’s office:

• did not complete the portion of the form affirming that she had filed the application with the Board, and
• omitted the date of service in the section stating she had served the application on the other parties by mail.

Two blanks. Not a late filing. Not a failure to actually serve anyone. Two boxes left empty on a cover sheet.

The carrier pounced and argued the application should be denied because of those omissions. Price’s office tried to fix it — they filed a supplemental RB-89 and an affirmation from the paralegal who prepared the original, explaining that the blanks were inadvertent and that the application had, in fact, been filed and served on time.

The Board sided with the carrier anyway. It ruled the supplemental form was untimely and that, because Price hadn’t specified the date or method of filing on her initial form, the application was denied — full stop. The knee appeal was dead. Not because she was wrong about the knee. Because of two empty boxes.

If the story stopped there, this is a worker losing her right to be heard over a typo.

Counter: The Legislature already saw this coming

The story did not stop there. Price appealed to the Appellate Division, and the Third Department reversed the Board.

Here is the part worth slowing down on, because it is a genuine shield for injured workers and most people have never heard of it.

Back in 2021, the Legislature got fed up with exactly this maneuver and amended the Workers’ Compensation Law. The key provision is Section 23-a, and the court quoted it directly. It says that — and I’m barely paraphrasing — notwithstanding anything in the Board’s own regulations, a mistake, omission, defect, or other irregularity in an RB-89 shall not be grounds for denial of the application.

Read that again. Shall not be grounds for denial.

Instead, when there’s a defect on the form, the Board is supposed to do one of two things: either (1) notify the worker in writing and give them 20 days to fix it, or (2) just disregard the problem entirely if nobody’s substantial rights are actually harmed by it.

The court walked through what the Board did against what the statute requires, and the gap was glaring:

• The Board never notified Price in writing of the defects or gave her the 20 days to cure them.
• After the carrier pointed out the blanks, Price came forward with proof that the defects were inadvertent and that she had actually filed and served on time.
• The carrier never challenged that proof, and never claimed it had been prejudiced — harmed in any way — by the blank boxes.

The court was careful and precise about one thing, and I want to be precise too, because it matters: Section 23-a protects you from defects in the contents of the form. It does not excuse you from actually filing and serving on time. If you blow the real deadline or never serve the other side, that’s a different problem and § 23-a won’t save you. But that’s not what happened here. Price did satisfy every filing and service requirement. She just failed to write down on the form that she’d done it.

The court’s bottom line, quoting the legislative history of the 2021 fix:

“a small mistake on a cover sheet should not be cause for a full denial of an appeal.”

Denying her appeal over the blanks, the court held, was an abuse of discretion and “cannot stand.” Reversed, and sent back to the Board so Price finally gets her appeal heard on the merits.

A second case from the same day — because the form cuts both ways

Here’s something I couldn’t resist pairing with Price, because it landed the very same day and it’s the mirror image.

In Matter of Dulay v. Oriska Insurance Company (CV-24-1589, also decided May 28, 2026), the worker was a physical therapist assistant assigned to nursing home patients in the Bronx. In late March 2020 — the first terrifying weeks of the pandemic — he contracted COVID-19. He was hospitalized on April 3, 2020, and he died on May 10, 2020. His daughter filed for death benefits on behalf of herself and her siblings.

The Workers’ Compensation Law Judge established the claim: the death was causally related to his work. The carrier appealed to the Board — and this is where it gets instructive. There were actually two linked decisions, a “lifetime” claim and a “death benefits” claim. On its own RB-89, the carrier listed only the death benefits claim in box one and never sought review of the separate decision establishing the lifetime claim. In its brief, it argued only the lifetime claim’s merits and never actually disputed that the man died of COVID.

The Third Department affirmed the award to the family. The carrier’s arguments were unpreserved — it hadn’t properly used the form to put the right decisions in front of the Board, and it never raised a real medical challenge to the death claim. Its later attempt to appeal an earlier set of decisions was dismissed as untimely.

Put the two cases side by side and you get the lesson in stereo. In Price, a worker nearly lost on a form technicality — and the law rescued her, because § 23-a exists to forgive clerical slips. In Dulay, the carrier lost because it didn’t use the form correctly to raise and preserve its issues — and there’s no § 23-a equivalent that forgives failing to actually raise an argument.

The difference is the whole ballgame: a clerical blank on the form is forgivable. Failing to actually do the substantive thing — serve on time, seek review of the right decision, raise the argument — is not. One is a typo. The other is a missed move.

Takeaway: For the injured worker

If you’re appealing anything in your comp case, internalize three things:

1. The carrier may attack your paperwork instead of your case. Do not be rattled if the carrier’s response to your appeal says nothing about your injury and everything about a defect on your RB-89. That’s a play, not a verdict. As of the 2021 amendment, a clerical mistake, omission, or irregularity on the form cannot be the basis for denying your appeal. The Board has to let you cure it or overlook it.

2. But the underlying deadlines and service are real — protect those. Section 23-a forgives blanks on the form. It does not forgive missing the actual deadline to file (generally 30 days from notice of the Judge’s decision) or failing to actually serve the other parties. Get the appeal in on time, serve everyone, and keep proof you did. Then, if a box gets left blank, you’re in Price territory — protected — instead of out of luck.

3. Keep the proof that you did it right. Price won the day because, when challenged, her office could come forward and show the filing and service actually happened on time and the blanks were inadvertent. Save your filing confirmations, your mailing receipts, your certificates of service. That paper trail is what turns “the form was incomplete” into “the form was incomplete but everything was done correctly.”

If your appeal has been denied — or threatened with denial — over a defect on the RB-89 rather than the merits of your injury, that is precisely the moment to talk to a New York workers’ compensation attorney who has worked the other side of the table. The carrier runs these procedural plays because they work on people who don’t know the rules changed in 2021. They don’t have to work on you.

You can read more about how I represent injured workers across Brooklyn and the rest of New York City — laborers, healthcare workers, MTA employees, and uniformed personnel make up the bulk of my practice — and you can browse past issues at the blog index. Last week’s issue on the pre-existing-injury defense pairs well with this one if you want a second helping.

Bonus track: For the claimant attorney

A few practitioner notes on Price (CV-25-0913):

The holding is a clean reaffirmation of the Szymanski / Evans / So line: the Board’s completion-and-formatting regulations under 12 NYCRR 300.13 (b) “may not abdicate, contravene or be inconsistent” with WCL § 23-a. When the Board denies on a 300.13 (b) (4) (iii) “failure to properly file” theory that’s really just a contents defect, § 23-a controls.

Watch the line the court drew: § 23-a reaches contents defects, not the service requirement itself (citing Evans, 227 AD3d at 1248). The winning fact in Price was that service and filing were actually timely and complete — the only failure was noting it on the form. Preserve and document actual timely service; don’t lean on § 23-a to paper over a genuine service failure.

Procedurally useful: the Board’s failure to notify in writing and give the 20-day cure period, plus the carrier’s failure to allege prejudice, were both load-bearing. Build your record to highlight both when you’re fighting a denial. And note that the reconsideration / full-Board-review appeal was dismissed as academic (Troiano), so you don’t need a separate merits argument on that branch once the underlying reversal lands.

On the flip side, Dulay (CV-24-1589) is a tidy reminder on the carrier’s own preservation burden: listing only one claim in box one of the RB-89 waives review of the linked decision, and untimely notices of appeal under WCL § 23 don’t get a second life. The same procedural rigor we resent when it’s aimed at claimants is available to us when the carrier gets sloppy.

Frequently Asked Questions

Can my New York workers’ compensation appeal be denied because of a mistake on the RB-89 form? No. Under Workers’ Compensation Law § 23-a, amended in 2021, a mistake, omission, defect, or other irregularity in the RB-89 form cannot by itself be grounds for denying your application for Board review. The Board must instead notify you in writing and give you 20 days to correct it, or disregard the defect if it doesn’t harm anyone’s substantial rights.

What is the RB-89 form in New York workers’ comp? The RB-89 is the application a party files to ask the Workers’ Compensation Board to review a decision by a Workers’ Compensation Law Judge. It includes affirmations stating when and how the application was filed with the Board and served on the other parties. It generally must be filed within 30 days of notice of the Judge’s decision.

Does Section 23-a excuse a late or missing filing or service? No. Section 23-a forgives clerical defects in the contents of the RB-89, not the underlying requirements. You still must file your appeal on time and serve all other parties. In Price v. Premium Brands OPCO, the worker won because she had actually filed and served on time and only failed to note it on the form.

What should I do if the carrier tries to get my appeal thrown out on a technicality? Don’t assume it’s over. Gather proof that you filed and served on time — confirmations, mailing receipts, certificates of service — and contact a New York workers’ compensation attorney promptly. Since the 2021 amendment, the Board cannot deny your appeal over a clerical defect on the form, and an experienced attorney can hold the Board to that rule.

What happened in Price v. Premium Brands OPCO? A store assistant manager appealed the denial of her left-knee claim. The Board denied her appeal because two boxes on her RB-89 were left blank. On May 28, 2026, the Third Department reversed, holding that the denial violated Workers’ Compensation Law § 23-a and was an abuse of discretion, and sent the case back for the appeal to be heard on the merits.

That’s it for this week. If you know someone whose appeal got bounced over a paperwork technicality, forward this — that’s the entire point of this newsletter.

See you next Thursday.

— Levi

Case Citations: Matter of Price v. Premium Brands OPCO, LLC, CV-25-0913 (3d Dept May 28, 2026); Matter of Dulay v. Oriska Insurance Company, CV-24-1589 (3d Dept May 28, 2026).

Levi Grosswald represents injured workers in New York. He previously served as Assistant Corporation Counsel and Deputy Chief of the Workers’ Compensation Division at the NYC Law Department. Nothing in this newsletter is legal advice.