Workers’ Compensation decisions are reviewed by the Appellate Division, Third Judicial Department. See Workers’ Compensation Law Section 23. This article is an overview of the process and the steps in taking and perfecting a workers’ compensation appeal. It is designed to assist those attorneys not familiar with the rules governing them. See also Section 800.18 of the rules of the Appellate Division, Third Judicial Department.

How to Take an Appeal:
If you wish to appeal from a decision of the Workers’ Compensation Board, you must file and serve your notice of appeal within 30 days from the date of the Board’s decision. The original notice of appeal should be filed with the Secretary of the Workers’ Compensation Board, 328 State Street, Schenectady, New York 12305 with proof of service on all of the parties listed on the Board’s decision and on the Attorney General, Eric T. Schneiderman. The Attorney General should be served at the following address: Department of Law, Labor Bureau, 120 Broadway, 26th Floor, New York, New York 10271. Filing a Pre-Calendar Statement is not required—see 800.24-a (a).

How to Perfect an Appeal:
It is your duty, as an appellant, to prepare a Statement of the Issues to be Presented for Review, along with a list of the documents relevant to those issues (proposed record list) and serve them on the Attorney General (who represents the Workers’ Compensation Board) and each interested party. The time to do so is in accordance with Section 800.18(b)2.

Along with the Statement of the Issues and the proposed record list, you, as the appellant, must also serve a written request to stipulate to the contents of the record list within a 20-day time period. If a responding party does not serve objections or amendments within that 20-day period, the record list is deemed correct as to that party and appellant may prepare an affirmation to be included in the record certifying that that party failed to make objections or amendments within the 20-day period.

If within the 20 days, a respondent has objections or amendments to the record list, he/she must serve the objections or amendments to the record list on the appellant. An additional period of 20 days is then given for the appellant and the objecting party to agree and stipulate in writing. If the parties are still unable to agree, the appellant will need to make a motion pursuant to 800.2(a) to the Board to settle the record list.

Unless a respondent makes a motion to dismiss, the time to perfect is nine months from the date of the notice of appeal. See Section 800.12.

The appellant files the single copy of the record on appeal (papers constituting the record list) with proof of service of one copy on the Attorney General and each other party, along with 10 copies of a brief/appendix with proof of service of two copies, or 10 copies of an appendix and 10 copies of a brief if bound separately from the brief, with proof of service of two copies on each party.

If all the papers are necessary to the appeal, then appellant may proceed on a full reproduced record and an appendix is not required. In this instance, 10 copies of the full record on appeal and 10 copies of the appellant’s brief are filed with proof of service of one copy of the record on appeal and two copies of the brief on each party.

A filing fee of $315 is required. See Section 800.23(a).

Oral argument is not permitted. See Section 800.10(a)(1). If you wish to argue, you must submit a letter application to the Court pursuant to Section 800.10(b).

Please contact me or any other team member with questions and assistance in preparing and filing a Workers’ Compensation appeal, or, for that matter, with assistance in preparing and filing an appeal in any court nationwide. Counsel Press is the only appellate service provider to offer same-day filing and service for matters filing in the Appellate Division, Third Judicial Department and the New York State Court of Appeals without special conditions or charges to you, our client.

Tagged: Appellate Practice, Appellate Services, New York State Appellate Division Third Department, Appellate Procedure, Litigation