Properly Serving An Appeal: Who, When, and How?
Proper appeal procedure is critical in protecting a carrier’s rights. One of the most common pitfalls that carriers face is improper service. The best written appeal brief is inconsequential if the appeal is not properly served. So, there are three questions that must be answered when discussing proper service of appeals: Who has to be served? When must the service be completed? And finally, how can service be accomplished?
Who must be served with an appeal? The answer to this question is governed by 12 NYCRR 300.13(a)(4). This statute provides that all necessary parties of interest must be served with the appeal. So, who is a necessary party? According to the statute, the following are necessary parties:
1.) Claimant’s self-insured employers
2.) Private insurance carriers
3.) State Insurance Fund
4.) Special funds
5.) No-fault carriers per section 142 of the Workers' Compensation Law
6.) Any surety, including but not limited to the Uninsured Employer's Fund, and the liquidation bureau
7.) Claimant’s attorneys or representatives
Carrier’s attorneys or representatives, and employers are not considered necessary parties when serving an appeal. When filing an appeal or reviewing an appeal, it is important to ensure that all necessary parties are served. If an appeal is not properly served, it is deemed is defective, and risks being denied without a review of the merits.
The next question that must be answered is, when must the appeal be served? Under New York law, the answer is simple: within 30 days. 12 NYCRR 300.13(b)(2)(iv)(a) states, “The affidavit, affirmation, or other proof of service must certify that all service was completed within 30 days from the filing of the decision that is the subject of the application for administrative review.” As long as service is performed within 30 days, the appeal is timely. If the 30th day happens to fall on a weekend or holiday, the due date becomes the next business day. In that scenario, however, it is advisable to submit the appeal earlier to avoid any possible challenges.
The last question to address is, how can you serve an appeal? There is no requirement which states that each party must be served in the same manner. However, any party that serves by electronic means, i.e., e-mail, fax, or other electronic means, must demonstrate receipt of express permission to serve electronically, unless the Chair has directed service be completed in such manner. To avoid challenges, it is advisable to serve the claimant and the claimant’s attorney by regular mail.
Serving your appeal on the proper parties, by the correct method, and in a timely fashion, will ensure that your appeal is not deemed defective, based on a procedural technicality. Additionally, a well-informed carrier can use this information to combat a procedurally defective appeal.
Please contact Earl Menard at firstname.lastname@example.org or (201) 880-9374 for more information regarding service of an appeal.