A party of interest (an injured worker, an employer or an employer's workers' compensation insurance carrier) may file an appeal and request an administrative review of a judge's decision. Unless a party files an appeal, the judge's decision is final. Appeals must be filed within 30 days of the filing date of the judge's decision [Workers' Compensation Law § 23].
Doctors, pharmacies and other medical service providers may not appeal. An injured worker may file an appeal regarding the payment of medical bills, by the insurer, to a treatment provider.
An injured worker who that is not represented by an attorney or by a legal representative at the time of the appeal or rebuttal is not required to use the Board's prescribed forms, nor follow all of the completion requirements, and/or serve the other parties.
This is only an overview of the requirements for filing an appeal. Please review all of the requirements in detail, using the links provided, and completely fill out every section of the forms.
The party who files the appeal is known as the appellant. If the appellant is represented by an attorney or legal representative, the appeal MUST be filed using the current Application for Board Review (Form RB-89).The form should be filled out completely. The form contains detailed instructions on how to file. Parties may attach a legal brief to elaborate on the basis for the appeal.
Applications submitted using an older version of Form RB-89 or which have an incorrect form identifier, are not in the prescribed format which may result in the appeal being denied.
The opposing party (the respondent), upon receipt of the appeal, may file a rebuttal within 30 days. The rebuttal MUST be filed using the current Rebuttal (Form RB-89.1).
The party filing the appeal must be able to specify the following:
- WCB case number(s);
- Claim admin's claim number(s);
- Carrier code number;
- Insurer's name;
- Date of injury/leave;
- Claimant's name;
- Claimant's address;
- The Party filing the appeal;
- The type of application being made;
- Date of the decision being appealed;
- Issue(s) for review;
- the basis for the appeal;
- Hearing dates;
- Transcripts, documents, exhibits and other evidence relevant to the appeal;
- Whether there is any new or additional evidence;
- When an objection was made at the hearing;
- Whether awards are being paid while the appeal is pending; and
- If an attorney fee is being requested.
The person filing the appeal must certify by their signature that the basis for the appeal is valid, as well as proof that the appeal has been properly served on all other parties of interest.
Fill Out Application Completely
It is best to complete each section or item on the Application for Board Review (Form RB-89) in its entirety. Failure to complete each section or item could result in delays in processing the appeal.
The "Issue(s) for Review" (Section 11) reflects the subjects of the underlying litigation for which a determination was made. These can include, but are not limited to the following:
- Whether there was a work-related accident,
- The employer/employee relationship,
- Notice, insurance coverage,
- Average weekly wage,
- Death benefits,
- Degree of disability,
- Period of disability,
- Reduced earnings,
- The approval of medical treatment and payment of medical bills,
- Any other issue that was the subject of an underlying decision.
The "Basis of Appeal" (Section 12) reflects the grounds upon which the appeal is being made, and identifies:
- the part of the decision being contested,
- the requested outcome of the appeal, and
- the reasons why the requested outcome should be directed, rather than being the determined in the contested decision.
The appellant may attach a legal brief to the Application for Board Review of up to eight pages in length, in 12-point font, with one-inch margins, on 8.5 x 11 paper. If the legal brief is longer than eight pages, it will only be considered if there is an adequate explanation as to why the legal argument could not have been made in eight pages. Even with an explanation, no brief longer than 15 pages will be considered.
Documents already in the Board's electronic case file must not be resubmitted with an appeal. An application containing attached documents that are already in the Board's file may be rejected/denied.
An appeal that includes new evidence that was not presented at or before the underlying hearing must include a sworn affidavit explaining why the evidence wasn't previously presented. If a sworn affidavit is not submitted with the application, the newly produced evidence will not be considered in connection with the appeal.
Rebuttal (Form RB-89.1)
The aforementioned provisions also apply to the filing of a Rebuttal (Form RB-89.1).
Service Requirements and Proof
Applications and Rebuttals must be served upon the necessary parties of interest. The necessary parties of interest include the following:
- Claimants' attorneys or representatives,
- Self-insured employers,
- Private insurance carriers,
- The State Insurance Fund,
- Special funds,
- No-fault insurance carriers or any surety.
The failure to properly serve a necessary party shall be deemed defective service and the application may be rejected by the Board. If the insurance carrier, self-insured employer, or payer files the application, it must serve the application on the claimant and claimant's attorney or representative, as well as the other necessary parties of interest.
Appellants and Respondents must complete either the affirmation or affidavit to provide proof of service on the necessary parties of interest. If the application or rebuttal is served electronically (fax, email, or other electronic means), then the appellant or respondent must certify in the affidavit or affirmation of service that the party served provided explicit permission to receive service electronically.
Application for Rehearing or Reopening
An Application for Board Review (Form RB-89) must also be used when making an application for "rehearing or reopening of a claim" pursuant to 12 NYCRR 300.14. An application for rehearing or reopening must make one of three contentions:
- Certain material evidence was not available at the time of the hearing;
- There has been a change in the injured worker's condition material to the issue involved.
- It is in the interest of justice.
An application for rehearing or reopening does not necessarily have to be made within 30 days of a decision, but must be made within a reasonable time after the applicant has had knowledge of the facts constituting the grounds upon which such application is being made.
Decisions on Appeals
A Board panel consisting of three Board members, reviews appealed cases, as well as applications for reopening or rehearing. The panel may agree with an underlying decision, modify a portion of that decision, or reverse the decision; it may also return the case for more hearings.
Insurers do not have to pay lost wage benefits while an appeal is pending before the Board. An insurer can accept a portion of a decision while appealing another portion of that same decision. If the insurer accepts a portion and/or period(s) of lost wage benefits, it must pay the accepted portion of the award while the appeal is pending. When a Board panel issues a decision that includes lost wage benefits, the insurer must pay those benefits (as well as any causally related medical bills) even if the insurer elects to appeal the case further.
Further appeals can be taken from a decision/determination of a Board panel. Theses appeals can be made to the Appellate Division and/or to the Full Board, depending on the circumstances of the case. Any Application for Reconsideration or Full Board Review (Form RB-89.2), or Rebuttal of Application for Reconsideration / Full Board Review (Form RB-89.3), must comply with the same requirements that apply to an Application for Board Review (Form RB-89) and a Rebuttal to Application for Board Review (Form RB-89.1). This includes using the forms specified by the Chair, and fully completing such forms.
An appeal from a Board panel decision may be taken, within 30 days after the decision has been served on the parties, to the State of New York Supreme Court, Appellate Division, Third Department. The original Notice of Appeal to the Appellate Division, Third Department, with proof of service thereof, must be served on the Secretary of the Board at the following address:
Office of the Secretary
NYS Workers’ Compensation Board
328 State Street
Schenectady, NY 12305
Service of the original Notice of Appeal on the Secretary of the Board at any other address will not be accepted. In addition, the appellant must serve a copy of the Notice of Appeal upon all interested parties, as well as on the Attorney General, who represents the Board on appeal, at the following address:
New York State Office of the Attorney General Labor Bureau
28 Liberty Street, 15th Floor
New York, New York 10005
Attention: Alison Kent-Friedman, Section Chief
Forms and Additional Resources
Appeal and Rebuttal Forms
- Application for Board Review Form RB-89
- Rebuttal of Application for Board Review Form RB-89.1
- Application for Reconsideration / Full Board Review Form RB-89.2
- Rebuttal of Application for Reconsideration / Full Board Review Form RB-89.3