Claimant's application for Workers' Compensation benefits was not controverted by Claimant's employer or the employer's Workers' Compensation Insurance carrier and the Employer continued to pay Claimant's wages, initially as leave at full pay and subsequently as sick leave at half pay.
Claimant returned to work and Claimant's attorney filed an application for counsel fees. The employer and the employer's Workers' Compensation carrier [jointly "Carrier"] filed an application for reimbursement for the wages that it had paid to Claimant as sick leave at full pay and as sick leave at half pay.
A Workers' Compensation Law Judge [WCLJ] granted awards for a temporary total disability for specified periods of time as a credit to the employer and the balance payable to Claimant. In a subsequent decision, the WCLJ approved counsel fees of $7,222.00 to Claimant's counsel, with $6,727 of that amount as a lien against the reimbursement award to the employer and the remaining $495 to be paid out of the money payable to Claimant.
The Carrier sought administrative review by the WCB, contending the WCLJ improperly approved counsel fees for Claimant's counsel as a lien on the amount of reimbursement awarded to the employer because there was no increase in the amount previously awarded or paid as is required under Workers' Compensation Law §24(2)(b). The WCB affirmed the WCLJ's decision, explaining because the WCLJ made an initial award that had increased the amount of compensation awarded and/or paid previously, it was proper under Workers' Compensation Law §24(2)(b) to award counsel fees in the amount of 15% of that award, "regardless of whether the awards were made as employer reimbursement." The Carrier appealed the WCB's ruling.
The Appellate Division affirmed the WCB's decision, explaining that Workers' Compensation Law §24, as relevant here, "governs the amount and manner in which attorneys and licensed representatives receive compensation for their representation of claimants."
Noting that the law sets out, among other things, "a schedule for the amount of counsel fees based upon the type of benefits awarded to a claimant", the Appellate Division's decision, in particular, noted that the law provides that "[w]hen an award is made that increases the amount of compensation awarded or paid for a previous period or periods of temporary total or temporary partial disability, the [counsel] fee shall be fifteen percent of the increased compensation" and that such fees, when approved by the Board, "become a lien upon the compensation awarded . . . and . . . shall be paid therefrom only in the manner fixed by the [B]oard".
Further, the Appellate Division held that the WCB "did not abuse its discretion by directing that the counsel fees be made payable against the carrier's lien for reimbursement", citing §24[4].
Click HERE to access the Appellate Division's decision posted on the Internet.