On May 23, 2018 in the published New York State Register, the Workers’ Compensation Board submitted proposed changes to Section 302-1.6 of 12 NYCRR in an effort to try and expand its legal internship program. The purpose of these changes is to allow for a more expansive group of law students and legal interns to represent parties in Board proceedings. The Board’s rationale behind these amendments, as provided with the proposed changes, is to decrease the total number of unrepresented claimants, especially in cases where only medical benefits are being sought as opposed to indemnity benefits.

The commentary provided by the Board with the proposed amendments state: “The proposed regulation will permit the Board to directly hire and supervise law school and legal interns, who will represent parties of interest in Board proceedings.” The Board goes on to state it intends to hire these interns through work-for-credit programs working with law schools, and there would not be monetary compensation.

Currently, the regulations allow for legal or law school interns associated with a legal aid organization to represent a party in Board proceedings. However, currently the definition of “legal or law interns” is subject to the Third Department Appellate Division’s rules. Part of the proposed amendment would allow for the Appellate Department where the intern’s activities are taking place to make the determination about whether or not to permit the intern to practice.  However, this raises an interesting question for this author – how does this proposed amendment account for the growing accessibility to a statewide Workers’ Compensation practice due to introduction of virtual hearings? Theoretically, a legal intern’s practice activities could encompass appearances in each Appellate Division. Neither the proposed amendments nor the commentary provided by the Board seems to address this jurisdictional question.

Additionally, the proposed amendments would now provide a definition for “legal aid organization”, which is not currently defined under the existing regulation. The specific language of the proposed amendment defining this term is as follows: <em>“including programs that provide assistance to persons who are financially unable to pay for legal services and are eligible to qualify for free legal services in accordance with the standards and guidelines of the organization or program in which they are engaged.”</em>

Lastly, the proposed amendments explicitly expand the range of services these interns can provide. Specifically, the amendments would allow the interns – under general supervision of an attorney – to fully participate in informal proceedings, prepare and enter into stipulations other than waiver agreements, and prepare and file applications for review/full board review or rebuttals. The regulations would allow these interns to enter into waiver agreements under immediate supervision of an attorney – which is already defined by the regulation to mean that the attorney be personally present with the intern throughout the hearing. The regulations already allow these interns to perform numerous activities in front of the Board under both general and immediate supervision of an attorney.

There is a 60-day public comment period from the day of the publication of this notice.