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Thursday, July 18, 2013

Workers’ compensation claim for the employee’s attorney fees awarded after carrier made full reimbursement for wages paid an employee injured on the job

Workers’ compensation claim for the employee’s attorney fees awarded after carrier made full reimbursement for wages paid an employee injured on the job
Casale v City of Rye, 2013 NY Slip Op 05268, Appellate Division, Third Department

A police officer submitted a claim for workers' compensation benefits after sustaining a fractured wrist on the job. The employer did not controvert the claim and paid the officer full wages during the period of his disability. The employer than sought reimbursement from its workers' compensation carrier for the wages it had paid the police officer.

The Workers' Compensation Board, without holding hearings, issued a proposed decision that established the claim and directed the workers' compensation carrier to reimburse the employer for the period of during which it had paid the police officer.

The carrier made full reimbursement to the employer as directed but on the same date that such payment was made the police officer’s attorney faxed a request for fees with the Board. As a result, the Board rescinded its decision and issued a new proposed decision awarding the police officer’s counsel a $750 fee and directed that it be paid by the carrier as a lien on the current award.

The carrier objected, contending that the award had already been paid.

The Board rescinded, again, “all prior decisions and scheduled a hearing.” Ultimately the Board granted police officer's counsel a $750 fee as a lien on any future awards made and the carrier appealed, contending that “the counsel fee award should have been made immediately payable by the carrier as an overpayment.”

The Appellate Division affirmed the Board’s decision, explaining that “counsel fees in conjunction with a workers' compensation claim may be attached as a lien to ‘'any compensation awarded,’ and the fact that a balance is not currently owing to a claimant does not preclude an award of fees made payable as a lien against future awards.”

Noting that there was nothing in the record establishing that the carrier received notice of the counsel fee request before it made full reimbursement to the employer, the Appellate Division declined to disturb the Board’s decision to award such fees as a lien against future awards.

The decision is posted on the Internet at:


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