Eligibility for Arbitration Any claim-related dispute, including eligibility, benefit rate, and duration of paid family leave, arising under the Paid Family Leave benefits program (PFL) is subject to arbitration.
The Arbitration Process
- The Applicant (for example, an employee) receives written notice of denial of his/her claim for PFL benefits.
- To initiate arbitration, the Applicant shall submit a Request for Arbitration and supporting documents (the "Request") to NAM and to the Responding Party within 26 weeks of written notice of denial. The Applicant must also submit a filing fee in the amount of $25 to NAM. The Request shall be submitted to NAM via US Mail or electronically through this website. In the event it is alleged that the employer did not have PFL insurance or was not self-insured, the Request shall also be sent to the New York State Workers' Compensation Board (the "WCB"). When the basis for a dispute is identification of the proper insurance carrier or establishing coverage for a paid family leave period, the carrier, employer, or WCB on behalf of the Special Fund for Disability Benefits, may file a request for arbitration to resolve the dispute.
- Upon receipt of the Request, the NAM case manager will review the documentation submitted to NAM to confirm that the necessary documents and filing fee were received. The NAM case manager will send a notice to all parties acknowledging receipt of the claim (the "Notice"). The Notice shall be sent by electronic mail within 2 business days of NAM's receipt of the Request, unless the Applicant requests communication by mail. In the event the Applicant requests communication by mail, all parties to the dispute shall be required to communicate by mail. The Notice shall also contain the NAM case reference number, contact information for the NAM case manager, instructions and pass codes for the parties to access their case information online in order that they may view and track the progress of the matter. An invoice for the cost of the arbitration proceeding will also be sent to the Responding Party. Such fees will be in accordance with the approved fee schedule established by the WCB for the program (see Fees for PFL Arbitrations below).
- In the event the NAM case manager determines that the Request is incomplete, i.e., not accompanied by the necessary documents or filing fee, the NAM case manager shall return the request together with a notice advising the parties of the missing/incomplete item(s) and that NAM will not be taking any further action on the claim because of such. The Applicant may resubmit a complete Request and fee to NAM, provided the statutory timeframe for submitting a claim has not expired.
- The Responding Party shall submit to NAM its response to the Request and all supporting documents regarding the claim (the "Response") within 14 days after its receipt of NAM's Notice. The Responding Party shall also send copies of the Response and all supporting documents to the Applicant. The Responding Party shall also remit to NAM payment by check or by credit card at this time.
- Upon receipt of the Response, or the expiration of the time to do so, the NAM case manager shall select the arbitrator from the approved panel of arbitrators. Arbitrators will be selected from the panel on a rotational basis. Once selected, the NAM case manager shall contact the selected arbitrator to conduct a conflict check by requesting that the arbitrator disclose any circumstance likely to affect impartiality, including any bias, or any actual or apparent conflict of interest from financial or personal interest in the arbitration. If an arbitrator informs NAM that there is an actual or potential conflict, NAM would select a different arbitrator at that point.
- The NAM case manager shall forward the name and biography of the selected arbitrator to each party in writing, no later than 14 days after sending the Notice.
- Either party may object to the appointment of the selected arbitrator by submitting an objection and grounds, in writing, to NAM. Within seven days after receipt of the objection, NAM shall determine whether the arbitrator shall be disqualified. The NAM case manager shall notify the parties of its decision, which shall be final and binding. In the event an arbitrator shall resign, be disqualified or be otherwise unable to perform his or her duties, NAM shall appoint another arbitrator.
- Once the arbitrator has been appointed, the NAM case manager will advise the arbitrator that the submissions have been uploaded to the NAM case management system and the arbitrator can access the submissions directly from the system.
- If the arbitrator determines that further development of the record is necessary, he/she must obtain the consent of the carrier or self-insured employer before proceeding further. In the event the carrier and/or self-insured employer do NOT consent to the arbitrator's request to further develop the record, the arbitrator will be required to request and obtain the consent of the WCB to proceed with further development of the record. The NAM case manager will be available to assist the arbitrator in communicating with the parties, or the WCB, in this regard.
- The arbitrator may request an oral hearing if the arbitrator determines that the requested additional evidence is not adequate to resolve the issue. In such case, the NAM case manager shall notify the parties of the location, date and time of the hearing.
- The arbitrator's decision shall be in writing and shall be rendered no later than 14 days after submission of all evidence or from the closing of the oral hearing. The NAM case manager shall forward a copy of the decision to each party.
- The NAM case manager will close the file. However, the case information will be stored in NAM's case management system and will remain accessible online for a specified period of time.
Fees for PFL Arbitrations The following fees have been approved by WCB. For the year beginning January 1, 2018, the following fees apply:
- Filing fee of $25 to be paid by the Applicant to NAM upon submission of a complete Request for Arbitration. If the Applicant prevails on his or her claim, $25 will be added to the benefits paid to the Applicant by the Respondent.
- For desk arbitrations, the Respondent will be charged an Arbitration fee of $495 per case.
- For arbitrations in which an oral hearing is held, the Respondent will be charged an Arbitration fee of $585 which includes the first hour of the Arbitrator's time. Each additional hour thereafter will be charged to the Respondent at $160 per hour of Arbitrator time.
- If multiple carriers or self-insured employers are parties to an arbitration, or WCB is a party, each will be charged an equal share of the fees.
- Unless a different arrangement is agreed to between NAM and the carrier or self-insured employer, a carrier that fails to submit the required filing fee to NAM with its response to an Applicant's request for arbitration, within 14 days, may result in a finding that the carrier or self-insured employer has waived all defenses. The carrier or self-insured employer shall be responsible for the arbitration fees together with simple interest thereon.
Withdrawal of arbitration requests
- The parties may, by mutual agreement, withdraw the request for arbitration in writing. The document must be signed by the parties and filed with NAM.
- Additionally, the party requesting arbitration may unilaterally withdraw a request for arbitration by filing such request for withdrawal with NAM and sending a copy to all other parties.
- Where the request for arbitration has been withdrawn, fees paid to NAM shall not be refundable.
- When a request for arbitration is withdrawn prior to receipt of a response from the opposing party and submission of the request for arbitration to an arbitrator, no fee shall be due other than the $25 filing fee.
Desk arbitration and further development of the record
- All disputes shall be resolved by desk arbitration unless the arbitrator, after review of the parties' submissions, finds further development of the record necessary.
- Whenever an arbitrator finds further development of the record necessary, he or she must also obtain:
- The consent of the carrier or self-insured employer paying for the arbitration to proceed with such further development of the record; or
- When the carrier or self-insured employer does not consent, the arbitrator must obtain the consent of the WCB to proceed with such further development of the record.
- Further development of the record may include submission of additional documentary evidence including sworn affidavits as directed by the arbitrator in addition to, or together with, a telephone conference to determine what evidence shall be produced and the timeline for such submission. The arbitrator shall make a record of the directions for additional evidence as well as the terms of a telephone conference.
- In the event that submission of such additional evidence is not adequate to resolve the issue, further development of the record may include an oral hearing. NAM shall notify the parties of the location, date, and time of the oral hearing.
Review of arbitration requests; medical examinations
- The arbitrator shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. The arbitrator may make such investigation, inquiry, or conduct a hearing, in such manner as he or she deems proper and necessary, and shall have the power to issue subpoenas, in accordance with section 7505 of the Civil Practice Law and Rules.
- Medical examinations of the care recipient shall only be required when so directed by the arbitrator. In the event that the arbitrator directs the submission of a medical examination, it must be a records review unless the arbitrator can cite extraordinary circumstances warranting the submission of an Independent Medical Examination based on a physical examination.
Decision of the arbitrator; awards; interest
- The arbitrator shall render a decision in writing no later than 14 days after submission of all evidence in the matter. The arbitrator shall specify the basis of the decision. The decision may include any stipulation made by the parties. The decision shall be delivered to each party.
- Awards in favor of a represented Applicant will specify the portion of the award to be paid to the Applicant's attorney as a fee commensurate with the services rendered.
- To apply for a fee, an Applicant's attorney must complete the portion of the Request for Arbitration relating to attorneys' fees and attach a detailed description of services rendered and time spent. If an oral hearing is held, the attorney may apply for an additional fee.
- If the Applicant indicates in the request for arbitration that he or she objects to the fee, the Applicant may submit a written statement to NAM within 14 days.
- The arbitrator will determine the amount of an Applicant's attorney's fee having due regard for the time spent, complexity of the case, the financial status of the Applicant, and the quality of the legal services rendered.
- Awards shall be paid to the prevailing party no later than 10 days after filing of the decision. Any awards remaining unpaid after said 10-day period shall draw simple interest from 10 days after the making of the award at the rate provided in section 5004 of the Civil Practice Law and Rules.
Enforcement and appeals of decisions
- Any decision of an arbitrator, made pursuant to the provisions of the PFL regulations, may be enforced, vacated, or modified in accordance with the applicable provisions of sections 7509, 7510, 7511, and 7514 of the Civil Practice Law and Rules. No other provisions of Article 75 of the Civil Practice Law and Rules, except as may be otherwise provided in the PFL regulations, shall be applicable to arbitration pursuant to the PFL regulations.
- The arbitrator and NAM shall not be made parties to a court proceeding relating to an arbitration. The WCB shall not be made a party to a court proceeding related to an arbitration award unless its presence as a party is pertinent to any issue raised in the litigation.
- The participation of a party in such an arbitration proceeding shall be a waiver of any claim against an arbitrator or NAM for any act or omission in connection with any arbitration conducted pursuant to the PFL regulations.