When a claim for benefits is controverted in whole or in part and the matter is not resolved through the Board’s Conciliation Process, the Workers’ Compensation Board schedules a hearing. Then a Workers’ Compensation Law Judge will issue a Decision.
Following the Decision of the Workers’ Compensation Law Judge, there are two further levels of appeal. Any party may file a request for review of a WCL Decision pursuant to WCL §23 within 30 days. At this level, the appeal is reviewed by a panel of three WCB commissioners. Any party dissatisfied with the decision of the three member panel may appeal to the Appellate Division, Third Department.
There is a potential third step, which is a request for Full Board Review. Generally, Full Board Review is discretionary unless there is a dissenting Board member in the initial Appeal.
Only the initial appeal to a three member panel stays the obligation to pay benefits, both medical and indemnity. A request for Full Board Review does not stay the obligation to pay benefits. Nor does an Appeal to the Appellate Division Third Department or the Court of Appeals stay the payment of compensation awarded.
The initial Board Level Appeal Decisions need to be reviewed carefully to avoid a penalty. Unless payment is made within 10 days of a Board Level Decision affirming an award, a 20% penalty is due pursuant to WCL §25-3(f).
There is no stay of payment because of either Discretionary Full Board Review or Mandatory Full Board Review. Upon the filing of a Board Panel Decision which determines that compensation and/or medical benefits are payable, the carrier liable, must provide payment within 10 days of the filing of the Decision. Otherwise a 20% penalty will be due.
Occasionally while cases are pending at the Board Level, the issues raised on Appeal will become moot. Sometimes this occurs because of subsequent developments in the case. In other cases, the parties have reached a mutual agreement or stipulation to resolve the issues presented on the appeal. It is the Board’s current practice to impose substantial penalties pursuant to WCL §114-a (3)(ii) on parties, including defense attorneys, when an unnecessary appeal is not rescinded. Therefore, a written withdrawal of any pending Board Level Appeal is required to avoid a WCL §114-a penalty when the issues presented on Appeal become moot.
– By William Pausley
