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.
Similar to a Board Panel appeal, there are no costs associated with filing an appeal to the Full Board, other than the paralegal/attorney time needed to complete the necessary filing requirements and write the supporting brief. However, unlike the first level of appeal, there is no stay on the payment of benefits during a Full Board Review which means the carrier is responsible for those payments while the appeal is pending. A Full Board Review is requested by filing an Application for Reconsideration/Full Board Review RB-89.2. https://www.wcb.ny.gov/content/main/forms/rb89_2.pdf. There are no formal requirements for the Request for a Full Board Review or the brief. The Full Board issues decisions within approximately 5-6 months. In an appeal to the Full Board, the Board can affirm, modify, or rescind the Law Judge’s decision. WCL §23.
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.
The appeals process is complicated and the decision to appeal to the Full Board is dependent on specific issues of law and facts for each case. Therefore, careful consideration should be taken before deciding on whether a case should be further appealed.