How Can I Appeal a Denied Workers’ Comp Claim?

How Can I Appeal a Denied Workers’ Comp Claim?

Workers’ comp is an insurance program intending to avoid lengthy and costly litigation between employers and employees following a workplace injury, accident, or death. It aims to cover the medical costs and lost wages of employees who suffer injuries at work. Once you make your claim, your employer’s workers’ compensation insurance carrier will initially grant or deny it. So, how does making your claim work, and what steps do you need to take if your workers' compensation claim ends in a denial? Our workers' compensation attorneys discuss how you go about starting the claim process.

Appealing to the Full Board

As before, a denial by the three Commissioners is not final. You can appeal their decision to the Full Board of the New York Workers’ Compensation Board for a decision on your workers’ comp claim. Once again, the Full Board can deny your appeal, but you can appeal still further to the Third Department of the New York State Supreme Court and the Court of Appeals.

How To Appeal A Workers Comp Claim

Appealing to the Appellate Division, Third Department

If the Full Board upholds the denial of benefits, you can seek a review of your case from the Appellate Division, Third Department, Supreme Court of the State of New York. You must file the appeal within 30 days of the decision of the Full Board. The court will consider evidence presented by both sides as well as any witness testimony before it issues a ruling. In what is undoubtedly not a surprise to you, there is still one more layer of appeal available.

Appealing to the Court of Appeals

If the Appellate Division upholds the denial of benefits, you can seek review from the New York Court of Appeals, the state’s highest court. The Court of Appeals only rarely accepts workers’ compensation appeals and usually only if the case presents a novel or unusual question of Workers’ Compensation law.

Should You Hire a Workers’ Comp Attorney?

You are the one who must decide whether you need an attorney to work with you on your workers’ compensation claim. Since your attorney will be charging a contingency fee, your initial conversation and case evaluation will likely be at no cost to you. This meeting can help you better understand how the facts and circumstances of your case will affect the likelihood of your collecting on your claim. You should prepare for the meeting by learning some workers’ comp basics and being fully prepared with the detailed facts of your case.

Although the ultimate decision is yours, you should be aware that a research study in 2015 found that claimants who worked with a workers’ compensation attorney received awards that averaged 27 percent higher than those who did not. Those with attorneys also tended to resolve their claims in just about two-thirds the time of those who did not.

It’s also worth considering that experienced Workers’ Compensation attorneys understand the workings of a complex system because they work with it every day. That familiarity, and their experience negotiating with insurance companies and arguing in court, can all rebound to your benefit in getting your claim successfully through the system. If you need to speak to an attorney about your claim contact our experienced workers' compensation attorney online or call us today at

What Do You Need for a Workers’ Compensation Claim

If you are injured in the workplace or a work-related accident, you will need to go through the process of filing a claim for workers’ compensation coverage. Your health insurance may not cover work-related injuries. You therefore must carefully and accurately file your workers' compensation claim.

To state a viable claim for workers’ comp, you must establish that:

  • A work-related accident covered by the workers’ compensation law happened.
  • Following the accident, you filed a timely notice to your employer within the 30-day time limit imposed by the workers’ compensation law.
  • A causal relationship exists between the work-related accident and the resulting injury or disability.

A work-related accident under the workers’ compensation law is an event or circumstance arising from the course of your employment that injured you. To recover under the workers’ compensation law, you must have suffered a work-related injury and meet the conditions above. If you cannot meet these minimal conditions, you do not have a viable workers’ compensation claim. However, just because you meet the basic conditions and state a viable claim does not mean that the insurance company will automatically approve your claim and that you will receive benefits right away.

Instead, many valid claims result in an initial denial, and anyone who receives a denial needs an experienced work injury lawyer handling the appeal.

Why Insurers Deny Workers’ Comp Claims

Before we consider the details of what to do when the insurance company denies your claim, it is worth looking at reasons that a claim will be one of the seven percent or so that receive an initial denial.

Some of the more common reasons are:

  • Failure to file a timely claim, as you must formally report your claim to your employer within 30 days from the date of the injury
  • Incomplete or incorrect paperwork, as your paperwork must follow all the rules for filing a workers’ comp claim very carefully.
  • Employer denies that claim happened at work or in the course of your employment.
  • Inadequate or missing medical documentation of the claim
  • Lack of witnesses to the accident who can corroborate your version of the accident
  • Failure to seek prompt and appropriate medical care
  • Seeing an unauthorized doctor; generally, the carrier will require that you see certain medical professionals.
  • Your injury wasn’t work-related
  • You have pre-existing conditions or injuries that caused your injury or made it worse.
  • Blood tests show your use of drugs or alcohol at the time of the injury.

Your employer’s carrier may claim that one or more of these conditions apply to your case. Nonetheless, in the end, insurance companies eventually overturn nearly 70 percent of initial denials.

Initial Denial

Once your employer reports a workplace injury to its workers' compensation insurance carrier, the employer will receive an acknowledgment record, an electronic reply sent by the Workers’ Comp Board to acknowledge receiving your First Report of Injury (FROI) or Subsequent Response of Injury (SROI). The SROI is necessary twice a year while your claim remains open, when benefits start, stop, or change, when the insurer pays a lump-sum payment, or when your claim closes.

If the workers’ comp carrier rejects your initial claim at this point, the acknowledgment record will set out the reasons underlying the denial. In other words, the company from which your employer’s workers comp policy was purchased has the first right of denial. However, once the insurance company makes the initial decision to grant or deny your claim, the New York Workers’ Compensation Board then has the power to rule on whether the insurer’s denial should stand.

How Long Does the Initial Decision Take?

If the workers’ comp carrier expects to deny your claim, it must file a Notice of Controversy within 25 days of receiving your claim. The Notice of Controversy constitutes formal notice that the carrier has denied or will deny your claim. The carrier will earlier have filed a Notice of indexing to protect its right to deny your claim at a later date.

When the carrier denies your workers’ comp claim, you will receive a First Report of Injury (FROI) form. This first form is the FROI—4 First Report of Injury Report Type (MTC) 04 Denial. However, if you receive the FROI—4 First Report of Injury Report Type (MTC) 04 Denial, this, despite its appearance, is not a final decision on whether you can receive workers’ compensation benefits.

Once you receive the Notice of Controversy or workers’ comp claim rejection, the carrier forwards the Notice of Controversy to the NY Workers’ Compensation Board. The Workers’ Comp Board then schedules a Pre-Hearing Conference.

The Pre-Hearing Conference Process

At the Pre-Hearing Conference, the hearing body will decide whether you, the injured worker, have produced enough evidence to go forward with the workers’ compensation claim. If the court decides there is enough evidence, it will authorize the insurance company an opportunity to obtain an Independent Medical Exam (IME). The court will then schedule a date for the testimony of medical witnesses and any other witnesses that might have relevant evidence. After the hearing, the court may then direct that the parties submit written legal documents before it makes a decision. This whole process will likely take a few weeks.

During this Pre-Hearing Conference, both you and your employer’s insurance carrier must file the necessary documents to make your respective cases as to whether the claim should be denied or accepted.

During this hearing, the judge will hear testimony, review your medical records and wages, and then will decide on the resolution of the case and, if appropriate, the amount of any award. The award can be either through a favorable decision by the Board or a settlement with your employer’s insurance company. You are entitled to be represented by an attorney or other licensed representative, who can only charge you a fee if you receive a monetary award for lost wages. This fee structure is the “no fee, no award” arrangement you’ve probably seen on television. It is also called a contingency fee.

By this time, it should be fairly clear that working with an attorney experienced and knowledgeable in workers’ compensation claims to get you through the process.

What Papers Will You Need for the Pre-Hearing Conference?

One of the more important documents for the Pre-Hearing Conference is PH-16.2, the Pre-Hearing Conference Statement.

As the injured worker, your Pre-Hearing Conference Statement must include:

  • The facts and circumstances of your injury and claim
  • The names of any relevant witnesses
  • The legal theory underlying your case

Once again, it’s clear that a skilled workers’ comp attorney will make handling your case considerably easier than trying to do it by yourself. This attorney can work with you to prepare the documents and information required to accompany the Pre-Hearing Conference Statement. The carrier will, of course, have its own experienced in-house staff attorneys handling their portion of the case.

What Happens Next?

In the Pre-Hearing Conference, you and the carrier will present your cases, and the judge will decide whether your claim should be established or denied. If the claim denial stands at the Pre-Hearing Conference, you will have 30 days from the day of the Pre-Hearing Conference decision to file an appeal.

A three-member panel of commissioners at the New York Workers’ Compensation Board will review the appeal. Unfortunately, there is no set time for the Commissioners to make their decision. When they do, they can uphold the denial, modify your claim, or approve it. They can also send it back to the original judge for further consideration. If the three members cannot come to a unanimous decision, either you or the carrier can request a review by the Full Board. You can also appeal to the Full Board if a denial happens again.

How Your Attorney Charges Fees

As mentioned above, all attorney’s fees in NY Workers’ Compensation cases are contingency fees, paid only if you receive a favorable result. Once you have received a favorable result, your attorney will file a fee request with the Board. The request will outline all the services your attorney provided to you for your case and must include the time and dates of those services. You will receive a copy of that fee request and can file any objections or concerns with the Board. The Board may then accept the request as filed, reject it entirely, or grant a lower amount of fees.

The Board does not have any specific percentage or formula on which it will base the award of attorney fees.

Instead, it will consider several factors, including but not limited to:

  • The amount and type of services provided
  • The complexity of your case
  • The severity of your injury
  • Your financial status
  • Whether the attorney acted promptly and handled your case efficiently
  • Typical fees charged in your geographic area for similar services

Although the Board may consider the results the attorney obtained for you in its review, it may not grant a request for fees based solely on the benefits or award you receive.

Why Hire an Experienced
Attorney Like Ivan Diamond

If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

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If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

Someone who understands the tactics insurance companies and opposing lawyers sometimes use to avoid liability and paying settlements.

Insurance adjusters, in particular, know that you’re going through a difficult time. They may try to take advantage by offering you a lowball settlement, hoping you’ll jump at quick money before you talk to a lawyer. Don’t help them out. Instead, let an experienced attorney handle the negotiations.

The same goes for preparing your claim. A skilled, knowledgeable litigator like me understands what facts and arguments are most important to prove your claim to a judge and jury, if it comes to taking a case to trial. I know how to guide my clients through depositions, discovery, and efforts by opposing lawyers to trap them into saying things that might undermine their case.

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