You’ve been injured or contracted a disease or illness at work, and your worker’s comp claim was denied or not fully paid by order of the workers’ comp judge. What do you do?
First, know that workers’ compensation in most states, including New York, is not initially litigated in the court system. Instead, it has its own system and rules. A workers’ comp claim is initially litigated before a worker’s comp judge, who issued an order memorializing his or her decision.
If you don’t agree with that decision, you can file for administrative review but must do so within 30 days of the judge’s decision.
An appeal must be filed within thirty (30) days of the circulation date of the Worker’s Comp Judge’s decision. A panel of three Workers’ Compensation Board Members will review the decision and may affirm it, modify it, or rescind it.
Once the panel has reached a decision, either party may apply in writing for review by the full Board. The full Board will either decline to review the decision or rescind the decision, and another panel of three will then hear the case and issue a new decision.
If either party wishes to appeal from that panel decision, they must do so in writing within thirty (30) days to the Appellate Division, Third Department, Supreme Court of the State of New York. Appeals are taken from there to the Court of Appeals.
You certainly can file a workers’ comp appeal pro se (meaning, representing yourself) but your best chance of success lies with hiring the right worker’s comp appeal attorney to help you. An experienced worker’s comp attorney will not know only all of the deadlines and rules for both the workers’ comp process and the legal system but will be well-practiced in researching the law supporting your position, finding and citing to other cases like yours where the claimant got the relief you seek, and writing a persuasive legal brief and arguing effectively to the Board or the Court in person if needed.
Just like with any service provider, you should both shop around and ask friends to refer you to someone who has helped them or someone they know with the same problem you have. The attorneys you meet with should be local to you and to the office you will have your hearing in. This is for your convenience as well as to ensure that the attorney you retain has experience in that local office.
How do you shop around? Most worker’s comp attorneys will offer a free consultation during which he or she will assess your case and let you know the probability of getting the relief you seek. At that time you can ask questions like:
After your discussion, you will have a good sense of whether the attorney is experienced enough to give your case the representation it deserves, and whether you can work with him or her, or not. If you don’t care for the attorney, move on to someone else. It’s important to have a good working relationship with your attorney and to trust him or her to handle your case as best they can.
An important aspect of worker’s compensation law is that in general, your attorney does not get paid unless and until you do. If an attorney takes your appeal, then he or she must believe there is a good chance of prevailing. Use this as your guide as well, to give your worker’s comp case the best chance of succeeding.
About the Author
Veronica Baxter is a legal assistant and blogger living and working in the great city of Philadelphia. She frequently works with a busy Philadelphia appeals attorney, Todd Mosser. Esq.
Veronica plays soccer in a recreational league and is a rabid Philadelphia Union and Sky Blue fan. She is committed to social justice and volunteers at a local soup kitchen and as a roofer and framer with Habitat for Humanity. She lives in a renovated south Philly rowhome with her husband John, their two rescue poodles, Connor and Camelot, a full aquarium of African Cichlids, and several rescue cats (the number changes almost daily!).
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