The Secrets To A Successful Appeal In Your Workers Comp Case!

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The Secrets To A Successful Appeal In Your Workers Comp Case!

Good afternoon, everybody today we're going to talk about a topic that we deal with every single day. We get a lot of questions about this topic. It's something that we deal with in many cases: Appeals. Appeals of your workers compensation case.

What is an Appeal in Workers Compensation and Who is Eligible to File One?

In order to file an appeal from any worker compensation decision, you must have standing. It's a term that applies across all areas of law. It's called standing. You need to be a party of interest to the case. You need to be the claimant as my clients generally are or the employer or the insurance company. But you need to be a party to the case. You can't just be somebody who has some odd interest and you want to appeal a decision.

You need to be a party to the case to have standing to file that appeal. An appeal is an application for the review of a judge's decision and it doesn't necessarily have to be an application to review the final decision of your case. It could be an appeal to review any final decision that happened along the way. So if you had a judge, make a ruling on your average weekly wage or your period of lost time or your level of disability while you're out of work. Any of those decisions by a judge can be appealed and you and if you're the claimant and you're standing then you could certainly file an appeal.

Or if you have an attorney, the attorney could do that for you and you should speak to your attorney about what needs to go into an appeal and how and why it should be done. An appeal should not be filed just because you don't like the decision. You have to have a basis for your appeal and that basis should be either a mistake of fact or an error of law. It's going to be something you can identify in that judge's decision where they made a mistake as to the facts, the facts that they got from you or or from from the evidence or they misapplied the law.

You have to identify a factual error or a mistake of law in your appeal in order to hopefully be successful in having that judge's decision overturned or changed or modified or whatever you want to call it so that that's generally how an appeal works. For most types of legal mission, remember that mistake, fact or error of law.

What Does the Appeal Process Look Like? How Long Does it Take?

The length of time that the appeals process takes really varies in workers compensation. The way the appeals process works is you go to court, you go to a hearing in front of a judge and a decision is made and if you don't like the decision, you file an appeal, an application for review or the insurance company doesn't like that decision. They file an application for review.

The next level is what's known as the Board Panel. Your appeal or the appeal that's filed goes up to essentially goes up to Albany and there's a panel of the Workers Compensation Board Commissioners. There's a number of Board Commissioners and there's a three panel that hears those appeals and they they decide your appeal. So the first level of appeal after the judge is the Board Panel review and three commissioners will hear that appeal. When I say they hear it, they review the documents and they make a decision. They don't actually have another hearing so you don't go to Albany and present your your appeal, they review your documentation and they make a decision and if you don't agree or if an appeal from that from the board panel is desired it goes up one level and the next level is what's known as Full Board Review and this is where all of the Commissioners of Board hear the appeal and and make a decision.

Now a Full Board Review. There are two types of full Board review, now we're getting into the upper levels of appeals process in New York State workers compensation. There are mandatory appeals and discretionary appeals, and generally speaking, if the board panel if all three commissioners at the panel level were unanimous, if they all agreed on what the decision should be and an appeal is filed from that decision up to the Full Board. That's usually discretionary, and it means that the Full Board does not have to hear your appeal, they could file a document that says that they reviewed the lower decision from the board panel. They agree and they are choosing not to hear your appeal. What you can do in that circumstance when you file for full board review is you do have the option to also file an appeal with the Appellate Division Third Department, and now we're getting into confusing areas of law with all the different courts in New York State.

Generally speaking, you are taking your case out of the workers compensation world and you're sending it into the general New York State court system at the Appellate Division, which is the middle level of appeals, the middle level of court, and you're asking the Third Department to also hear your appeal. That's done separately. It's a separate filing with the Appellate Division. Third Department, that's that's how the process generally works. Now very few cases go that far.

Most cases that are appealed go to the Board Panel. The Board Panel makes a decision and a lot of times that's the beginning and end of the appeals process, the length of time that takes is hard to say. Because it's really based upon how busy the Board panel is, how busy the Commissioners of the Board are, how many appeals they're hearing, and in addition to all the other work that they're doing. It really depends on how long it takes used to take a lot longer right now it takes a matter of months and that is really the best answer I can give. Some appeals are done within four or five months and some appeals could take 8, 9, 10 months. I haven't seen many go much beyond that.

How Will Filing an Appeal Affect My Benefits?

Well, if you are filing the appeal, then you are filing an appeal from a decision that you don't like and you're asking for more. You're asking for more money or you're asking for something that the judge didn't otherwise give you. It really shouldn't have an impact on your benefits that you're receiving after the hearing that you're filing the appeal from.

Because you know what you're getting filing on hearing, that's why you're appealing, so there shouldn't be an impact on your benefits. The impact on your benefits is probably coming from the hearing where you had the problem, which is why you're following the appeal. But at least you know what you're getting. These are very generalized answers, and every circumstance in every situation can be different.

In circumstances where an insurance company files a simultaneous appeal from the same decision, there might be something from that one hearing that you don't like and something that the insurance company doesn't like, and you both might file appeals. Ships crossing in the night, and that could have an impact on your benefits if a judge awards you money but made another decision during that hearing that you didn't like and you appeal that decision but the insurance company doesn't like the amount of money that you were rewarded.

They can withhold what they think you're not entitled to and file their appeal and your benefits would be pending the outcome in that appeal. So there could be an impact on your benefits there sometimes. Also, if your appeal raises issues that the insurance company takes issue with in their rebuttal then they could file an appeal at that point and there could be some impact on your benefits.

But generally speaking you know what the outcome that hearing was, which is why you're appealing it. There's not going to be any shock to you based upon your appeal until of course the decision is made.

What Should You Do For the Best Chance of a Successful Appeal?

Make sure you go into your hearing fully prepared. All the evidence you need prepped on your testimony and ready to go. If you don't have a lawyer, make sure you go over everything that you have. If you do have a lawyer, have a discussion with them before you're hearing. So that you know what to expect, especially if you're going to be giving testimony.

You want to avoid the appeals process if at all possible. Sometimes unforeseen circumstances arise during your hearing or your trial issues pop up that you didn't anticipate. An employer witness might have offered testimony or evidence that you didn't anticipate coming. Sometimes you have to file new evidence and if you have to file new evidence you have to be very careful. The board is very particular. They have a very stringent set of rules and you have to follow all those rules.

If you offer new evidence in your appeal, you have to file an affidavit explaining why this evidence was not otherwise available at the time of your trial or previously. Why it wasn't already provided the to the Board. And if you don't file an affidavit, or if your rationale is not sound, not true, not good, they could choose not to hear that, not to review that evidence, or not to hear the appeal altogether, so you need to, you need to file their rules and need to file them very, very, closely. All the preparation that goes into an appeal that might need to be filed should go into your trial.

You want to avoid appealing the case altogether if at all possible. But if you do have to do it, make sure you follow the rules.

What Are the Possible Outcomes When Filing an Appeal? Is There Anything Else You Can Do if You're Unsuccessful?

As attorneys, we refer to the outcomes as an affirmation, a reversal and a romance.

Affirmation means that the Appeals Court, the Board panel, the Full Board, the Appellate Division is affirming the lower decision and they're saying, we agree with what the judge said and we're not making any changes. The decisions affirmed, so that's the first outcome.

The second outcome is a reversal. They could say, we completely disagree with what the judge said and we are reversing it. So if your case was disallowed and you appealed it, they could reverse and say, "Your case is now established," fantastic.

The third thing that they do and this is what we see see a lot of is a remand. The Appellate Body, whoever it might be, the Appellate Court could say, "Well, we understand this issue and there's a lot of conflicting evidence here, so we are remanding the case. We're sending the case back to the judge for further consideration of the issue of average weekly wage or benefits or lost time or whatever it might be with the benefit of additional information or the new evidence that was provided or just for further testimony." They call it on the outstanding issue. A lot of times they'll basically nullify the decision and send it back to the judge to make to make a new ruling after a little more development of the record, we call that. That's generally what happens.

If you're unsuccessful, you can appeal it up to the next levels as we discussed earlier earlier. So if it's a board panel decision that you don't like, you can apply for full board review. You can apply for an Appellate Division appeal with the Third Department. You can do those things and move up the ladder.

Any Final Tips For Appeals as a Workers Comp Lawyer?

Be brief. Don't drone on and on like I'm doing right now. Be concise. Be brief. Get to the point. Get to it quickly. Get to it effectively and move on. The Board has actually issued rules in the last few years limiting the length of an appeal.

They got overwhelmed with receiving 20 and 30 page appeals with all sorts of attachments and documents and footnotes and they basically said, "Limit your appeals, limit the size of your appeals and keep them keep them short." Keep them brief, keep them accurate and there's no reason to go on and on and on in your appeal. So if you have a problem with a decision, get to the point, get to it quickly, get to it effectively and move on to any other things that you might be appealing. And the other tip that I have is follow the rules. Every appeal and rebuttal.

A rebuttal is the response to the appeal. Every appeal and rebuttal has to have a form attached to it. I'm going to attach a link: The RB-89 is the board form for an appeal. So when you file an appeal from a judge's decision, you're filing an RB-89 form. It's a two-page form that you fill out. You have to fill out all aspects of that form, and you have to follow all the rules. This two-page form has a two-page instruction sheet attached to it.

Make sure you read the instructions from end to end and you follow all their rules. If you don't follow the rules, they will not hear your appeal. They will throw your appeal out if an appeal is filed in your case. If you receive an appeal, you need to file a rebuttal.

The rebuttal is the RB-89.1 and it's the same thing. It's a two-page form with a two-page instruction sheet. Read All the instructions, fill out all the blanks. Make sure you answer all the questions in those forms. The appeal form and the rebuttal form both have spaces. They have boxes that you could fill in for your information and if your argument for your appeal is brief enough to fit in that box, fit in that box and be done with it. Make sure you hit all the high points and you make all the points that you want to make and move on. Send it in and let them make a decision on it.

Brevity is key, being concise is key and the commissioners appreciate when you get to the point and explain yourself quickly and easily, and I think sometimes that works to your favor. Just for completeness here the RB-89 and the RB-89.1 are the appeal and the rebuttal from the decision of the judge up to the board panel. The RB-89.2 and the RB-89.3 are the appeal and the rebuttal from the board panel up to the full board. So again they're all very similar forms. They're all accessible in the Workers Compensation Board website and the Form section. They all have very concise instructions on how to file those forms. Where to file them. How to complete them. You have to make sure that you stick to the rules because they are the board is very rules driven.

Question: "Hello, my lawyer put in for an appeal. Why does it take six to nine months for an appeal to go through?" I wish I had an answer to that question, it would make my life easier. Make some of my clients much happier. I think it really comes down to how busy the board is. New York State is a big state and we have a lot of people here and a lot and we a lot of people working. Thank God and unfortunately people get hurt. People get hurt every single day and you know all these cases going through this system. Sometimes there are slowed downs because the board, the commissioners and the board panel.

They have a big backlog and they have to figure out the best way to handle their caseload effectively and you know it requires that we have to just be patient. You know they're doing everything they can and I'm not going to blame anybody here. I'm not going to say the board's doing a terrible job because they're not. They're busy and they have a very, very heavy case load and they're doing the best they can and as much as they're doing the best they can. We as the claimants and the claimants attorneys need to be patient. Talk to your lawyer, maybe they have some more insight as to what's going on in your particular case.

Please feel free to reach out anytime. My phone numbers at the bottom of the screen there 212-406-8989.

I am happy to help but be safe. Happy happy holidays to everybody, please have a wonderful day. Thank You.

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