§ 23 — Appeals

New York § 23

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 2: Compensation

Text

§ 23. Appeals. An award or decision of the board shall be final and\nconclusive upon all questions within its jurisdiction, as against the\nstate fund or between the parties, unless reversed or modified on appeal\ntherefrom as hereinafter provided. Any party may within thirty days\nafter notice of the filing of an award or decision of a referee, file\nwith the board an application in writing for a modification or\nrescission or review of such award or decision, as provided in this\nchapter. The board shall render its decision upon such application in\nwriting and shall include in such decision a statement of the facts\nwhich formed the basis of its action on the issues raised before it on\nsuch application. Within thirty days after notice of the decision of the\nboard upon such application has been served upon the parties, or within\nthirty days after notice of an administrative redetermination review\ndecision by the chair pursuant to subdivision five of section fifty-two,\nsection one hundred thirty-one or section one hundred forty-one-a of\nthis chapter has been served upon any party in interest, an appeal may\nbe taken therefrom to the appellate division of the supreme court, third\ndepartment, by any party in interest, including an employer insured in\nthe state fund; provided, however, that any party in interest may within\nthirty days after notice of the filing of the board panel's decision\nwith the secretary of the board, make application in writing for review\nthereof by the full board. If the decision or determination was that of\na panel of the board and there was a dissent from such decision or\ndetermination other than a dissent the sole basis of which is to refer\nthe case to an impartial specialist, or if there was a decision or\ndetermination by the panel which reduced the loss of wage earning\ncapacity finding made by a compensation claims referee pursuant to\nsubparagraph w of subdivision three of section fifteen of this article\nfrom a percentage at or above the percentage set forth in subdivision\nthree of section thirty-five of this article whereby a claimant would be\neligible to apply for an extreme hardship redetermination to a\npercentage below the threshold, the full board shall review and affirm,\nmodify or rescind such decision or determination in the same manner as\nherein above provided for an award or decision of a referee. If the\ndecision or determination was that of a unanimous panel of the board, or\nthere was a dissent from such decision or determination the sole basis\nof which is to refer the case to an impartial specialist, the board may\nin its sole discretion review and affirm, modify or rescind such\ndecision or determination in the same manner as herein above provided\nfor an award or decision of a referee. Failure to apply for review by\nthe full board shall not bar any party in interest from taking an appeal\ndirectly to the court as above provided. The board may also, in its\ndiscretion certify to such appellate division of the supreme court,\nquestions of law involved in its decision. Such appeals and the question\nso certified shall be heard in a summary manner and shall have\nprecedence over all other civil cases in such court. The board shall be\ndeemed a party to every such appeal from its decision upon such\napplication, and the chair shall be deemed a party to every such appeal\nfrom an administrative redetermination review decision pursuant to\nsubdivision five of section fifty-two of this chapter. The attorney\ngeneral shall represent the board and the chair thereon. An appeal may\nalso be taken to the court of appeals in the same manner and subject to\nthe same limitations not inconsistent herewith as is now provided in the\ncivil practice law and rules. It shall not be necessary to file\nexceptions to the rulings of the board. An appeal to the appellate\ndivision of the supreme court, third department, or to the court of\nappeals, shall not operate as a stay of the payment of compensation\nrequired by the terms of the award or of the payment of the cost of such\nmedical, dental, surgical, optometric or other attendance, treatment,\ndevices, apparatus or other necessary items the employer is required to\nprovide pursuant to section thirteen of this article which are found to\nbe fair and reasonable. Where such award is modified or rescinded upon\nappeal, the appellant shall be entitled to reimbursement in a sum equal\nto the compensation in dispute paid to the respondent in addition to a\nsum equal to the cost of such medical, dental, surgical, optometric or\nother attendance, treatment, devices, apparatus or other necessary items\nthe employer is required to provide pursuant to section thirteen of this\narticle paid by the appellant pending adjudication of the appeal. Such\nreimbursement shall be paid from administration expenses as provided in\nsection one hundred fifty-one of this chapter upon audit and warrant of\nthe comptroller upon vouchers approved by the chair. Where such award is\nsubject to the provisions of section twenty-seven of this article, the\nappellant shall pay directly to the claimant all compensation as it\nbecomes due during the pendency of the appeal, and upon affirmance shall\nbe entitled to credit for such payments. Neither the chair, the board,\nthe commissioners of the state insurance fund nor the claimant shall be\nrequired to file a bond upon an appeal to the court of appeals. Upon\nfinal determination of such an appeal, the board or chair, as the case\nmay be, shall enter an order in accordance therewith. Whenever a notice\nof appeal is served or an application made to the board by the employer\nor insurance carrier for a modification or rescission or review of an\naward or decision, and the board shall find that such notice of appeal\nwas served or such application was made for the purpose of delay or upon\nfrivolous grounds, the board shall impose a penalty in the amount of\nfive hundred dollars upon the employer or insurance carrier, which\npenalty shall be added to the compensation and paid to the claimant. The\npenalties provided herein shall be collected in like manner as\ncompensation. A party against whom an award of compensation shall be\nmade may appeal from a part of such award. In such a case the payment of\nsuch part of the award as is not appealed from shall not prejudice any\nrights of such party on appeal, nor be taken as an admission against\nsuch party. Any appeal by an employer from an administrative\nredetermination review decision pursuant to subdivision five of section\nfifty-two of this chapter shall in no way serve to relieve the employer\nfrom the obligation to timely pay compensation and benefits otherwise\npayable in accordance with the provisions of this chapter.\n Nothing contained in this section shall be construed to inhibit the\ncontinuing jurisdiction of the board as provided in section one hundred\ntwenty-three of this chapter.\n