Introduction to Appeals – generally.
Any final determination of a Workers’ Compensation Law Judge is subject to appeal. The first level of appeal is to the Workers’ Compensation Board Panel. These panels are usually composed of three Workers’ Compensation Board members, at least one of which must be an attorney. The second level of appeal is to the Supreme Court Appellate Division, except when there is a dissent in the Board Panel Decision, the party can request a Full Board review. WCL §23. In a Full Board review, all 13 Commissioners of the Board render a joint opinion. Finally, and if there is a dissent in the Appellate Division, the matter can be appealed to the State Court of Appeals (New York’s highest court).
At the first level of appeal, disputed benefits (medical and indemnity) are stayed pending decision. At all other levels, there is no automatic stay.
|1st (lowest)||Board||YES||Hours. No filing fees.||NO||~25%|
|2nd||Full Board||NO||Hours. No filing fees.||YES||~10%|
|2nd||App. Div.||NO||$5,000 + hours||YES||~8%|
|Last||Court of Appeals||NO||$5,000 + hours||NO|
First level of appeal – to the Board panel
A. What can be appealed to the Board Panel?
Any final determination of Law Judge can be appealed. WCL §23. Nearly all Notices of Decision which are not interlocutory in nature and which dispose of substantive issues or reach legal threshold issues which may be determinative of the claim can be appealed.
Purely interlocutory decisions – those which do not dispose of a significant issue in dispute – can not be appealed. In practice, this has meant that decisions of Law Judges, limiting proofs and determining issues to be decided at Pre-hearing Conferences (mandatory in denied cases) are not subject to review. However, those decisions, which often have a great impact on the ultimate decision in a denied matter, can be appealed after the final order (Notice of Decision) is issued.
The Board Panel can rescind the decision of the Law Judge, modify the decision, reverse the decision, or correct it. “Correction” as that term is used by the Board Panel is intended to correct administrative error – for example, an incorrect calculation of rate. In cases where a minor error has been made (for example, transposition of numbers, or mis-identifying a witness name) the parties should informally approach the Law Judge first to ask for an amended Decision can be obtained within the 30 days for filing the appeal.
B. Requirements of appeal to the Board Panel.
The Board has promulgated a “Cover sheet” which should be completed and affixed to any filed appeal. 12 NYCRR 300.13(a). This cover sheet is labeled “Cover Sheet – Application for Board Review RB-89” is required by the relevant Court Rule and is available to download from the Board’s website here. The relevant court rule also requires a Certification or Affirmation of service; the RB-89 form contains the required proof of service.
The Board will refuse to review any issue not raised before the Law Judge. 12 NYCRR 300.13(e). This means that defense counsel must raise all available objections at the hearing and have exceptions noted on the record.
New Evidence that was not considered by the Law Judge may be presented to the Board Panel. 12 NYCRR 300.13(g). In order for the Board to review the “new” evidence, the party seeking to introduce it must make a showing as to why the evidence was not produced at the time of trial or before a Law Judge.
C. Timelines for Board Panel review.
An appeal of a Law Judge’s decision must be made within 30 days of the decision. WCL §23. In calculating the days, it is important to note that this is not a month, but only 30 calendar days. If the 30th day falls on a Sunday or holiday, then the appeal can be filed on the next day.
The party defending the appeal (respondent) has 30 days to file a rebuttal. 12 NYCRR 300.13(b). The rebuttal must have the cover sheet prescribed by the Board. Id. This cover sheet is labeled “Cover Sheet – Rebuttal of Application for Board Review RB-89.1” and is available for download form the Board’s website here.
There is no oral argument allowed for a Board Panel appeal. WCL §23. The Board Panel considers only the record below and the papers submitted by the parties.
D. Tactical considerations of Board Panel review.
i. The likelihood of success on appeal.
The most important consideration of Board Panel review is the likelihood of prevailing on the legal or factual argument presented. Approximately 25-30% of all Law Judge Decisions are modified, reversed, or rescinded on Board Panel appeal. Because the Board Panel includes an attorney, issues of improper or unsupported evidence, misapplication of law, and judicial error are likely to be corrected at the Board Panel level.
Credibility determination made by a Law Judge are unlikely to be disturbed on appeal to the Board Panel, unless there are egregious oversights or errors. The Law Judges are given wide latitude in assessing witness credibility, especially where the witnesses have testified before the Law Judge (and not just be depositions, which is the case of most medical testimony).
ii. Effect of the stay on litigation.
A second consideration is the effect that the stay on disputed benefits may have on the pending litigation. Indemnity benefits which are the subject of the appeal are “stayed” or stopped until a Board Panel issues a decision. At the time of this writing, Board Panel decisions are taking about 10 months to be issued following the appeal. This means that given the initial 30 day period to file, and the 30 days for the claimant’s attorney to respond to an appeal, that indemnity benefits may be suspended for a year before a response is received from the Board Panel.
This creates an opportunity for the parties to resolve the issues informally, whether by Section 32 (WCL §32) for a lump sum dismissal or stipulation. The effect of the stay on the litigation should be considered as a tactic by the carrier/employer as a suspension of benefits or reduction of benefits for approximately a year is a powerful tool to pressure towards a settlement.
iii. Penalties for frivolous appeal.
Recognizing that the implication of the stay on awards encourages the potential for abuse by the employer/carrier, the Workers’ Compensation Law contains a penalty provision. If the Board Panel finds that the party appealing did so “for the purpose of delay or upon frivolous grounds” the Board may impose a penalty of up to $500 on the employer or its insurance carrier. WCL §23. It is interesting to note that the statute does not contain any similar penalty that could be assessed against the claimant for similarly frivolous appeals.
There are no filing fees for an appeal to the Board Panel. Costs to the carrier/employer are for the paralegal and attorney time to prepare the appeal. Generally speaking, a paralegal should prepare the cover sheet and certification of service (RB-89) for the attorney to review and sign; an attorney should draft the appeal brief. Letter briefs (a less formal type of brief) are generally submitted.
3. Second Level of Appeal – Full Board and Appellate Division.
The first level of appeal – to the Board Panel – is the mandatory path for an appeal from a Law Judge’s decision. The next level of appeal may offer the litigants a choice of forum. The main consideration for the second level of appeal is the likelihood of success and the costs of pursuing the appeal, as the tactical opportunity (stay) afforded by the first level appeal are not available.
A. The Full Board.
If there is a dissent in the Board Panel decision, appeal may be made to the Full Board. WCL §23. As with an appeal to the Board Panel, there is no cost for this appeal (no filing fee). In an appeal to the Full Board, the Board can either affirm, modify, or rescind the Law Judge’s decision. WCL §23. There is no stay on the payment of benefits during a Full Board review.
A Full Board review is requested by filing “Cover Sheet – Application for Reconsideration / Full Board Review RB-89.2” which is provided by the Board here.
The Full Board may review Board Panel decisions on its own motion or “in the interests of justice” as per 12 NYCRR 300.13(f). The Full Board can also relax the 30-day filing requirements as it sees fit. Id.
B. The Appellate Division.
A party can appeal directly from a Board Panel decision to the civil court’s appellate division. WCL §23. All workers’ compensation appeals are heard in the 3rd Department, which sits in Albany. There are ten justices of the Appellate Division. All are lawyers.
In addition to the general court rules governing appeals (CPLR), each appellate department has its own local rules. The court rules for the 3rd Department are available here.
C. Appealing to the Full Board and Appellate Division at the Same time.
A party can appeal to both the Full Board and the Appellate Division at the same time. There are two reasons to do this: speed and cost.
i. Speed of decision, Full Board and Appellate Court.
The Full Board will generally issue decisions faster than the Board panel. In our experience, the timeline for a Full Board decision is usually 5 – 6 months (as opposed to 10-12 months for a Board Panel). This means that if both a Full Board and a Appellate Division appeal are filed at the same time, the Full Board decision will usually be issued before the record is even “perfected” in the Appellate Division.
In order for the Appellate Division to hear an appeal, the parties must submit a copy of a “record” which serves as the fact basis for the appeal. The record is generally the exhibits, medical records, briefs, and decision of the Law Judge. CPLR §5526. Under the relevant rules, the parties are supposed to agree on the record. CPLR §5532, Rules of App Div, 3d Dept [22 NYCRR] § 800.18.
In practice, the Attorney General, who represents the Board in all appeals to the Appellate Division, is difficult to deal with, slow to respond to proposed records, and generally dilatory. Therefore, the “perfection” of the record, which is supposed to be completed within 9 months of filing a Notice of Appeal, can take up to a year (and require motions to extend the time to submit the record). This delays a decision on the appeal, and considerably slows down the process.
If the Full Board has ruled favorably (recision, modification, reversal) then the Appellate Division Appeal can be abandoned.
ii. Costs of appeal, Full Board and Appellate Court.
There is a vast difference between the average costs for an appeal to the Full Board versus an appeal to the Appellate Division.
Appeals to the Full Board have no filing costs, no special printing costs, and no cost for reproduction of the record. The Full Board does require a special cover sheet (Form RB-89.2) but there are no other formal requirements for the Request for Full Board review or the brief. The cost of filing an appeal to the FullBoard is generally the paralegal/attorney time to complete the necessary filing requirements (cover sheet) and write the supporting brief. Because the brief is often an update or supplement to the already-filed brief in support of appeal submitted to the Board Panel, the cost is generally predictable and minimal.
Appeals to the Appellate Division are far more costly, as there are filing fees, briefing requirements, and printing costs. The Appellate Division imposes a $315 filing fee for all appeals. CPLR §8022(b). Next, there are formal brief requirements, which dictate the type of paper to be submitted, font size, and binding types. CPLR §5530, Rules of App Div, 3d Dept [22 NYCRR] § 800.8. The Appellate Division even has page limitations and required section for the brief, which increases the amount of time it takes for an attorney to draft a conforming brief.
In addition, the Appellate Division requires that the record be submitted according to specific requirements which include format, paper size, binding, and internal citation. The appellant (party seeking appeal) must provide an original and nine copies of the record, as well as ten copies of the brief, to the Court. All of these copies must be printed and bound in accordance with the Appellate Division’s local rules. In practice, most attorneys use a printing vendor to format and compile the appendices and briefs, and to submit them to the Clerk. The costs for the printing and binding alone usually exceed $5,000, depending on the size of the record on appeal. This does not include the attorney/paralegal time to prepare both the record and the brief.
Appeals to the Appellate Division follow a timetable set forth in the court rules. Within 30 days of the issuance of a Board Panel decision, the party wishing to appeal must file a Notice of Appeal. Then, the parties must work together to “settle the record” – that is, decide which exhibits, medical records, documents, and testimony should be included in the master record list supplied to the Appellate Division. The court rules allow for a 65-day period where other parties to the appeal can object to the record; then the Appellant (party seeking appeal) can apply to the Workers’ Compensation Board to settle the record. In any event, the record must be settled and the appellant’s brief submitted to the Appellate Division within 9 months of the Notice of Appeal. Then, the respondent has 30 days to file a rebuttal. The appellant can file a “reply” to the rebuttal within 10 days following receipt of the rebuttal brief. Rules of App Div, 3d Dept [22 NYCRR] § 800.8(c).
E. Tactical Considerations.
Because there is no stay on the payment of benefits, there is no advantage to the carrier/employer in a lengthy appeal process. However, if the employer/carrier is successful on appeal, any amounts expended for indemnity or medical during the pendency of the appeal are refunded to the employer/carrier from special funds. WCL §23.
In 2013, which is the last year for which we have statistical records, the Full Board reversed the Law Judge’s decision approximately 10% of the time.
In 2013, the Appellate Court reversed the Law Judge decision 8% of the time.
4. Appeals to the Court of Appeals.
Where there is a dissent in the Appellate Division, appeal can be made to New York’s highest court: the Court of Appeals. The timeline for filing a Notice of Appeal to the highest court is 30 days from entry of the decision below (the Appellate Division decision).