Two attorneys cover the fundamentals of appeals from Board decisions. Presenters Declan Gourley and Joseph Melchionne have years of experience representing employers and carriers before the Board. The presentation is designed to help the attendee answer the following questions:
“Should we appeal the Law Judge’s Decision in a workers’ compensation claim?” and
“Does filing the appeal create a stay?” and
“What are the tactical reasons for appealing the Law Judge?”
“What will the appeal cost?”
At the end of the presentation, the attendees will have a basic understanding of the appeals process, tactical aspects of appeals (stays), and the costs of the various types of appeals available.
Appeals from workers’ compensation courts are directly to the New Jersey Superior Court Appellate Division. R. 2:2-3. The standard for review of a decision of a Judge of Compensation in most instances is governed by Close v. Kordulak Bros., 44 N.J. 589 (1965). In Kordulak, the Supreme Court held that the standard of review for decision rendered by the Division of Workers’ Compensation is:
whether the findings made could reaosnable have been reached on sufficient credible evidence present int he record, considering the proofs as whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility and with due regard also to the agency’s expertise where such expertise is a pertinent factor.”
The New York Workers’ Compensation Board has adopted new regulations for Administrative Review, Full Board Review, and Applications for Reconsideration. The new regulations affect all appeals at the Board level.
The regulations were detailed in a Board Bulletin issued last week. The new regulations affect the format of the appeal briefs, page length of the appeal briefs, methods of filing your appeal with the Board, and reasons for Board denial of a request for review.
The Board has again modified the cover pages that must be used when filing an appeal, a rebuttal, or a request for full Board review. The new forms are available directly on the Board website; Application For Board Review (Form RB-89) and Rebuttal of Application for Board Review (Form RB-89.1). After December 1, 2016, the Board will only accept the modified forms. The Board has made it clear that appeals and rebuttals submitted on the old forms after December 1, 2016 will not be reviewed.
The new regulations limit the page length of an appeal brief. According to the Bulletin:
The Board may deny applications when the brief exceeds eight pages, unless the appellant specifies in writing why the legal argument could not have been made within the eight-page limit. In those cases, the brief can be no longer than 15 pages.
The modified cover pages (RB-89, RB-89.1), specify the criteria for margin and font size for legal briefs.
The full text of the new §300.13 can be found here.
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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).
Attorneys Tashia Rasul and Declan Gourley lead a question & answer session on the impact of the Board’s decision to appeal the recent appellate panel decision finding the closure of the Special Fund for Reopened Cases unconstitutional.
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. Continue reading Can an Order of the Chair be Appealed?→