Monday, January 27, 2014

Monetary penalty assessed against workers’ compensation benefit claimant’s attorney


Monetary penalty assessed against workers’ compensation benefit claimant’s attorney
2013 NY Slip Op 08495, Appellate Division, Third Department

This appeal challenged a decision of the Workers' Compensation Board that, among other things, assessed a monetary penalty counsel fees of $500 against a workers' compensation benefits applicant’s attorney pursuant to Workers' Compensation Law §114-a(3)(ii).*

An employee [Claimant] resides in the Bronx and was injured in the course of his duties as a correction officer at Rikers Island. His claim for workers' compensation benefits was not disputed.

Claimant, however, "request[ed]," on a form provided by his attorney, that all hearings in his case be conducted at a hearing site in the City of White Plains, Westchester County. The form asserting that his "request MUST BE GRANTED" pursuant to "Board Rule 10.01(1)(c)."

The Workers' Compensation Law Judge found no reasonable ground had been established for a change of venue, noting that "Board Rule 10.01" did not exist and that counsel for claimant had previously been warned that she would be sanctioned if she thereafter relied upon this purported rule as the basis for a change of venue application.

Ultimately the Workers’ Compensation Board found the award of counsel fees under §114-a(3)(ii) to be proper and increased the $250 assessment set by the Law Judge to $500.

The Appellate Division said that the sole issue in this appeal was whether the assessment of reasonable counsel fees against counsel for claimant was warranted. Affirming the Board decision, the court said that Workers' Compensation Law §114-a(3)(ii) permits the Board to assess reasonable counsel fees against counsel where a proceeding before it has "been instituted or commenced without reasonable ground."

The court noted that [1] counsel for claimant had previously been warned that seeking a change of venue based upon a nonexistent "Board Rule" would subject her to sanctions; [2] she elected to do so in this proceeding notwithstanding such earlier warning; [3] White Plains had no obvious connection to claimant or the accident that led to this claim; and [4] the Board found that counsel had not advanced any legitimate reason for a change of venue.

Finding that substantial evidence supported the Board's determination to assess reasonable counsel fees against counsel for claimant pursuant to Workers' Compensation Law §114-a(3)(ii), the Appellate Division sustained the Board ruling.

* The sole issue in this appeal is whether the assessment of counsel fees against claimant's attorney was warranted. As those fees were directly assessed against counsel, counsel is the party in interest pursuant to Workers' Compensation Law §23 and "should have filed the notice of appeal on her own behalf."  

The Wolfe decision is posted on the Internet at:
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See, also, Banton v New York City Dept. of Corr. at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08494.htmand
Toledo v Administration for Children Servs., at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08500.htm
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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