The WCB's Role in Reviewing Cases

The Appellate Division issued a new opinion regarding the Workers’ Compensation Board’s discretionary power in reviewing cases. We are reporting on this case (D’Errico v. New York City Board of Corrections, 883 N.Y.S.2d 828 (Aug. 20, 2009) because the issue of WCB review is important to the practice of Workers’ Compensation Law in New York.
In D’Errico, a city corrections officer alleged that his employment experiences caused him to suffer permanent “major depressive disorder with psychotic features, post-traumatic stress disorder, and panic disorder.” The WCB ultimately denied his claims – finding that the claimant was no exposed to a ‘greater’ amount of work stress than any other ‘normally-stuated’ correctional officer. The claimant applied for a full Board review.
Appeal of from a Workers’ Compensation Judge’s decision is not to the appellate court. The first opportunity for review is to a WCB panel.
Either side may seek administrative review of the decision within 30 days of the filing of the Judge’s decision. There is no specific form for this – but it must be done in writing. A panel of three Board Members will review the case.
The employer’s attorney does not have to make a record (by taking exceptions, etc) below in order to ‘preserve’ issues for appeal. The WCB panel does a ‘fresh look’ at all of the evidence from the hearing below in reaching their decision. It is the written findings of fact and law of the panel that becomes the record for appeal to the Supreme Court.
This three-judge panel may affirm, modify or rescind the Judge’s decision, or restore the case to the calendar for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for mandatory review of the full Board. The full Board must review and either affirm, modify or rescind such decision. In addition, following a unanimous decision of the Board panel, a party may file an application for discretionary full Board review. The application for discretionary full Board review will either be denied by the Board or, when warranted, the Board panel decision may be rescinded by resolution of the full Board. When the original Board panel decision is rescinded a new panel decision will be issued.
In D’Errico, the claimant asked for a full-Board review – and his request was denied.
The Appellate Court upheld the denial of ‘full Board review’ – finding that the claimant could not (1) show that newly discovered evidence existed; (2) that he had a ‘material change in condition’; or (3) or that the Board improperly failed to consider issues raised in the application for review in making its initial determination. The Appellate Court also noted that in ‘rare instances’ the WCB was found to have abused its discretion in not granted a review of a prior board decision – but those ‘rare instances’ were confined to cases where the Bard failed to consider new evidence or disregarded a material change in the claimant’s condition. The Appellate panel found that the WCB had properly exercised its discretion and ruled that the claimant was not due a second review of his case by the WCB.

Two of the three Judges on the appeals panel agreed that the claimant was out of luck – that the Board did not have to review its decision. The third judge issued a ‘dissenting’ opinion – laying the foundation for the claimant to seek appeal to New York State’s highest court, the Court of Appeals. The dissenting opinion argued that the WCB had failed to ‘fully consider’ the issues in the first hearing the WCB granted the claimant. Specifically, the third judge questioned “whom” the ‘average correctional worker’ was that comprised the ‘normally-situated correctional officer’ baseline used by the WCB to determine that the claimant was not exposed to ‘extraordinary’ occupational stressors.
We will continue to monitor the progress of this case (decided August 20, 2009) and report on any future developments in this area of the law.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or