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.
Application for Board Review
The first level of appeal is known as an “Application for Board Review.” This appeal is made when a party disagrees with a decision at the hearing level (Notice of Decision or Reserved Decision).
This is an administrative appeal and the appeal is considered by a three member Panel of the Board. The appeal must be filed with the Board within 30 days of the filing date of the decision. The party defending the appeal (respondent) has 30 days to file a rebuttal from the date the appeal is filed with the Board. 12 NYCRR 300.13(b).
An appeal from an award to the Board operates as a stay of the obligation to make payment for disputed indemnity benefits and/or medical bills. N.Y. Work. Comp. Law § 25(c).
The Board Panel may affirm the prior decision, modify the prior decision, or reverse the prior decision. The decision by the Board at the initial appeal is known as the Board Panel Decision.
Request for Full Board Review
If a party disagrees with the Board Panel Decision within 30 days of the filing of the Board Panel Decision they may file an additional appeal. This administrative appeal is known as a Request for Full Board Review. If one of the three judges dissented in the Board Panel Decision, then a Full Board Review is mandatory if requested. If there is no dissent, the full Board has discretion to review the case. There is no stay on indemnity/medical benefits while awaiting Full Board Review.
It is important to note, a request for discretionary full Board review does not suspend the running of the time for appeal to the Appellate Division.
After a final decision has been made by the Workers’ Compensation Board, further review is available in the Appellate Division. There is no stay on indemnity/medical benefits while awaiting a decision in the Appellate Division. An appeal from the Board decision is taken to the Appellate Division, Third Department. The judges designated to the Appellate Division sit in panels of five.
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 nine 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).
N.Y.C.P.L.R. § 5522 empowers the appellate court to “reverse, affirm, or modify, wholly or in part. …” the Board decision. The appellate court may “where necessary or proper, remit to another court for further proceedings.” Otherwise, the appellate court is to make a final determination.
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. Otherwise, the Court of Appeals will hear cases only by permission. 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).
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