There is a lot of confusion about workers' comp appeals in New York: how many levels there are, who decides them, and — most important — what you are allowed to argue at each one. Getting that wrong can cost you the appeal before anyone reads it.
Here is how it works, from the first appeal of a judge's decision all the way to the state's highest court.
Level 1: The Board Panel
The first appeal of a decision by a workers' compensation law judge goes to the Workers' Compensation Board itself. The Board has 13 commissioners, and your appeal goes to a randomly selected panel of three of them.
- Deadline: 30 days from the filing date of the law judge's decision.
- How: in writing, on Form RB-89. You can attach a written brief of up to 8 pages. It is optional, but for anything with real complexity, a brief is worth it.
- The other side responds: the insurance carrier gets to file a rebuttal, and the panel considers both.
- How long it takes: in recent years, close to a year — about 11 months. It may be getting a little faster, but plan on a year.
The Board panel can revisit the facts. This is the level where you can argue that the judge believed the wrong evidence. For example:
- Your claim was disallowed because the judge found an employer's witness — who said you did not get hurt — more credible than you.
- Your claim was disallowed because the judge believed the insurance carrier's IME doctor (no back injury, or a back injury caused by age rather than work) over your own doctor.
In both cases you can ask the panel to find that you, or your doctor, were the more credible evidence. (For more on the carrier's doctor, see our guide on how to prepare for a workers' comp IME.)
After the Panel: Two Options, and You Can Take Both
If you do not like the panel's decision, you can:
- Apply for full Board review, where all 13 commissioners consider it, and/or
- Appeal to the Appellate Division, Third Department.
Full Board review is almost always a rubber stamp
The full Board only has to review a panel decision if one of the three commissioners dissented. Dissents are extremely rare right now. When the panel is unanimous — which is almost always — full Board review is discretionary. The full Board can deny it without looking at the merits, and it does so in the overwhelming majority of cases.
The Third Department is an actual court
The Appellate Division, Third Department is not part of the Workers' Compensation Board. It is a separate court, in Albany, and it hears workers' comp appeals from everywhere in New York, no matter where the case started. Appealing there is the first time your case leaves the Board.
Level 2: Appealing to the Third Department
The deadlines
- Within 30 days of the filing date of the Board panel decision, file a notice of appeal. This is not the appeal itself — it is a one-page document, with an affirmation of service, that tells the Board you intend to appeal.
- Then you have 6 months to put together the record, write the brief and file it with the court. This is called perfecting the appeal.
- Extensions: you can ask for 60 more days, and then 30 more — up to about 9 months in all without a formal motion.
What the court can and cannot review
The Third Department applies a much narrower standard than the Board panel: substantial evidence.
It cannot second-guess credibility or the facts. If the record contains evidence that could support a decision either way — your doctor says one thing, the IME doctor says another — and the Board picked the evidence against you, the court cannot reverse just because it would have picked differently.
It can reverse when:
- There is no substantial evidence at all behind the decision — for instance, the Board relied on facts that are not in the record, or drew an inference that does not follow from what it was based on.
- The Board got the law wrong. On a pure question of law, the court decides what the law is.
- The Board broke its own precedent without explaining why.
That is why the arguments that work before the Board panel are often not the ones that work in court — and why it matters to know which kind of problem your case has.
Level 3: The Court of Appeals
If you lose at the Third Department, a case can sometimes go to the Court of Appeals — New York's highest court (what most states call the Supreme Court). You cannot go there whenever you want. Generally there must be at least two dissenting justices at the Third Department, or the Court of Appeals must agree to hear the case because it is important enough to the state, or it raises a constitutional issue. In workers' comp, that is rare.
The Mistake That Even Lawyers Make
Here is the trap, and it is common — not just among injured workers, but among attorneys.
Someone loses at the Board panel and applies only for full Board review. They wait. Months later, the full Board denies review — usually a one-page decision saying it sees no reason to look again. Now they look for a Third Department appeal. Often their comp lawyer does not handle appeals to the Third Department, so they get referred to a firm that does.
By then, the 30 days to appeal the panel decision are long gone. The only decision still appealable is the full Board denial — and on that appeal, the Third Department does not look at the merits of your case at all. It only asks whether the Board should have used its discretion to review. Even if you win, all you get is an order that the Board look at your appeal. It does not have to decide it any particular way.
The fix is simple: if you are considering an appeal of a Board panel decision, file the notice of appeal to the Third Department within 30 days — whether or not you also apply for full Board review. The notice is a one-page document. The 30 days cannot be recovered once they pass. An attorney who handles Third Department appeals can tell you whether your case has the kind of problem the court can fix.
Key Takeaways
- First appeal: a three-commissioner Board panel, filed on Form RB-89 within 30 days of the judge's decision — and it can reconsider who was more credible
- After the panel: full Board review, the Third Department, or both — but full Board review is discretionary and almost always denied
- The Third Department is a real court, applies the narrow substantial evidence standard, and generally cannot re-weigh credibility
- File the notice of appeal within 30 days of the panel decision. Waiting for a full Board denial can leave nothing worth appealing
Got a Board panel decision against you, and the clock is running?
Workers’ compensation is what we do. At Schotter Millican, LLP, we represent injured workers across New York City, and we have never represented an insurance company or carrier.
Call (718) 770-3708 for a free case review. No fee unless we win.
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