| Matter of McCabe v Albany County Sheriff's Dept. |
| 2015 NY Slip Op 05236 [129 AD3d 1348] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of the Claim of James McCabe,Respondent, v Albany County Sheriff's Department et al., Appellants. Workers'Compensation Board, Respondent. |
Walsh & Hacker, Albany (Kelly B. Dean of counsel), for appellants.
Law Firm of Alex C. Dell, PLLC, Albany (Alex C. Dell of counsel), for JamesMcCabe, respondent.
Garry, J. Appeal from a decision of the Workers' Compensation Board, filed August27, 2013, which, among other things, ruled that claimant's counsel fee award was a lienagainst compensation awarded as a credit to the employer.
Claimant was employed as a correction officer by the Albany County Sheriff'sDepartment, a self-insured employer. While performing his duties in 2006, he sustainedvarious injuries that prevented him from working. Thereafter, he was paid his full wagesby the employer pursuant to General Municipal Law § 207-c. Claimant'sundisputed workers' compensation claim was established for several occupationalinjuries arising from this incident, including an injury to his left knee, and he wasawarded compensation payable to the employer as a credit for the statutory benefitsalready paid (see Workers' Compensation Law § 30 [3]). The claimwas later amended to include a consequential injury. In June 2008, claimant retained newcounsel, who successfully amended the claim again to include additional consequentialinjuries and, as a result, was awarded counsel fees in the amount of $2,400, payable fromcompensation awarded as reimbursement to the employer.
In March 2010, claimant fell and sustained injuries after his left knee gave way.After [*2]further medical evaluation, claimant's physiciandetermined that claimant had new consequential injuries and, following a hearing beforea Workers' Compensation Law Judge, the claim was amended to include additionalconsequential injuries. Claimant was also awarded compensation for six periods oftemporary total or partial disability, payable as reimbursement to the employer, andcounsel fees in the amount of $7,000 as a lien against the compensation award. Uponreview, the Workers' Compensation Board modified the determination of the Workers'Compensation Law Judge by reducing the award of counsel fees to $6,000, andotherwise affirmed. The employer and its third-party administrator (hereinaftercollectively referred to as the employer) appeal.
General Municipal Law § 207-c requires municipal employers to payfull wages to correction officers who are injured in the performance of their duties.Workers' Compensation Law § 30 (3) provides that the amount of suchpayments "shall be credited against any award of compensation" that may also be madeto such an officer. The employer contends that the mandatory language of the Workers'Compensation Law provision entitles employers to full credit for such payments and,thus, precludes the attachment of a lien for counsel fees. However, Workers'Compensation Law § 24 likewise uses mandatory language in providingthat, when approved by the Board, counsel fees "shall become a lien upon thecompensation awarded . . . [and] shall be paid therefrom only in the mannerfixed by the [B]oard" (emphasis added). The lien attaches when the compensation isawarded "and takes precedence over the employer's right to reimbursement of fundspreviously paid to the claimant-employee" (Matter of Height v Hicksville FirestoneDealer Store, 35 NY2d 692, 693 [1974]). The purpose of enacting Workers'Compensation Law § 30 (3) was not to preclude counsel fees, but to "avoidduplication of benefits to an injured [officer], the combined total of which might exceedthe salary [the officer] would have received for the period" if the injury had not occurred(Mem of Indus Commr, Bill Jacket, L 1963, ch 280, § 2; see Matter ofLeone v Oneida County Sheriff's Dept., 80 NY2d 850, 852 [1992]). Workers'Compensation Law § 30 (3) must be harmoniously interpreted with theWorkers' Compensation Law as a whole and with General Municipal Law§ 207-c (see Matter of Leone v Oneida County Sheriff's Dept., 166AD2d 74, 76-77 [1991], affd 80 NY2d 850 [1992]). We find nothing in thestatutory language indicating a legislative intent to treat employees who receive benefitsunder General Municipal Law § 207-c differently from other injuredemployees by departing from the statutory scheme for payment of counsel fees set forthin Workers' Compensation Law § 24.
Contrary to the employer's argument, the fact that the lien here was applied to a creditfor benefits already paid by the employer and no reimbursement was paid to the employerfrom which the counsel fees could be deducted does not require a different result. Theterm "compensation" is defined as "the money allowance payable to an employee or tohis [or her] dependents as provided for in this chapter" (Workers' Compensation Law§ 2 [6]). The term is to be broadly construed to advance the interests ofinjured workers and is not limited to benefits paid directly to the employee (seeMatter of Keser v New York State Elmira Psychiatric Ctr., 92 NY2d 100, 104-105[1998]; Matter of Shea vIcelandair, 63 AD3d 30, 32 [2009]). Workers' Compensation Law§ 24 contains no requirement that a fund must exist or that payments mustbe exchanged to which a lien for counsel fees can attach, and the fact that an employer isa self-insurer who must pay the lien directly "is insufficient reason to deny theestablished precedence of such a lien" (Matter of Dickman v City of New York,25 AD2d 931, 932 [1966], affd 18 NY2d 969 [1966]).[FN1] To construe the statute as the employersuggests would disadvantage [*3]employees who receivebenefits pursuant to General Municipal Law § 207-c by making it difficultor impossible for them to find legal representation, and would not fulfill the beneficialpurposes of the Workers' Compensation Law (see Matter of Leone v Oneida CountySheriff's Dept., 80 NY2d at 852; Matter of Shea v Icelandair, 63 AD3d at32).[FN2]
The Board did not abuse its "broad discretion" in making the disputed fee award(Matter of Marchese v New York State Dept. of Correctional Servs., 293 AD2d920, 921-922 [2002]). The evidence submitted to the Board revealed that counselrepresented claimant for a lengthy period, filed RFA-1 forms on his behalf, madenumerous telephone calls to claimant, opposing counsel and the adjuster, appeared at ahearing, and successfully established a claim for claimant's consequential injuries. Wefind the Board's determination that claimant derived an economic benefit from theseservices to be within its province and, as it was not arbitrary, capricious or unreasonableas a matter of law, it will not be disturbed (see Matter of McDowell v La Voy, 83AD2d 680, 680-681 [1981]; see also Employer: NYC Administration For, 2014WL 1371482, *4, 2014 NY Wrk Comp LEXIS 2173, *10-11 [WCB No. G057 1442,Apr. 7, 2014]).
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the decision is affirmed,without costs.
Footnote 1:Contrary to theemployer's argument, this Court's decision in Matter of Cummins v North Med.Family Physicians (283 AD2d 861 [2001], lv denied 96 NY2d 720 [2001])does not preclude an award of counsel fees where, as here, no payments for lost wagespassed to the claimant. This Court subsequently disavowed any such "sweepingconclusion[ ]" and held that Cummins should be limited to its facts, which differsharply from those presented here (Matter of Shea v Icelandair, 63 AD3d at 32n).
Footnote 2:The employer'scontention that the Board's determination constitutes an unexplained departure fromprecedent is rejected. In the decisions cited, the determination not to award counsel feesresulted from the exercise of discretion in considering the facts presented, and the Boardmade no finding as to whether Workers' Compensation Law § 30 (3)precluded an award of counsel fees as a lien against an employer's credit (seeEmployer: Albany County, 2013 WL 3480788, 2013 NY Wrk Comp LEXIS 5940[WCB No. G045 8941, July 3, 2013]; Employer: City of Schenectady, 2013 WL1364521, 2013 NY Wrk Comp LEXIS 3929 [WCB No. G045 1670, Mar. 29, 2013]).