Appellate Practice

Any final determination of law can be appealed. The requirements for the appeal process in the New York Workers’ Compensation system are found in N.Y. Work. Comp. Law § 23. A party that disagrees with a law judge’s decision under the law can request a review of the decision, if the appeal is timely filed on the proper form within 30 days of the filing of the decision being appealed. Orders of the Chair are not appealable but if a party believes there is an error, a party may request the Board to rescind the Order of the Chair.

The Board may issue an “Order of the Chair” to address medical treatment variance requests. Orders of the Chair are most commonly issued when a treating medical providers files a variance request and the insurance carrier/self-insured employer fails to reply timely. According to the regulations [12 NYCRR 324.3(c)(6)], Orders of the Chair are not appealable under NY WCL §23.

When an appeal to the Board Panel does not prevail there are additional avenues of recourse available.  An appeal may be filed to the Appellate Division, Third Department, of the Supreme Court of the State of New York.  The Notice of Appeal must be filed within 30 days of the filing of the Board Panel Decision.  In the event the Board Panel Decision was not unanimous, any interested party may make application in writing for a full Board Review. WCL §23.
In a Full Board review, all 13 Commissioners of the Board render a joint opinion. The Full Board may review the Board Panel decision on its own motion or “in the interests of justice” as per 12 NYCRR 300.13(f). The Full Board also has the ability to relax the 30-day filing requirements.  Another option that a losing party may have is to appeal to the Full Board and to the Appellate Division at the same time. This is a cost/time efficient tactic that may be used if there was a dissenting opinion in the Board Panel Decision.  However, there is a vast difference between the costs for filing an appeal to the Full Board and the costs associated with filing an appeal to the Appellate Division.  An appeal to the Appellate level is much more expensive than an appeal to the Full Board.

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).