Opinion
2011-09-29
In the Matter of the Claim of Kevin F. BURKE, Appellant,v.VERIZON SERVICES GROUP et al., Respondents.Workers' Compensation Board, Respondent.
Fine, Olin & Anderman, L.L.P., New York City (Vincent Rossillo of counsel), for appellant.Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Verizon Services Group and others, respondents.
Fine, Olin & Anderman, L.L.P., New York City (Vincent Rossillo of counsel), for appellant.Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Verizon Services Group and others, respondents.
MALONE JR., J.
Appeal from a decision of the Workers' Compensation Board, filed May 7, 2010, which, among other things, denied an application
for an award of counsel fees to claimant's counsel.
Claimant suffered an injury at work on May 5, 2009 and applied for workers' compensation benefits. Prior to any award of benefits, the employer's workers' compensation carrier began making payments to claimant in the amount of $550 per week. In addition, as part of its benefit plan, the employer began paying claimant wages in lieu of workers' compensation benefits so that claimant was receiving his full salary. In October 2009, the employer requested reimbursement for the payments it had made in lieu of the workers' compensation benefits, but only “in the event of an award for schedule loss and/or facial disfigurement.”
At a hearing, the Workers' Compensation Law Judge (hereinafter WCLJ) determined that the employer had reserved the right for reimbursement, contingent on any future schedule loss of use award. Further, the WCLJ found the injury to be work-related and awarded benefits in the amount of $550 per week for the time period of May 13, 2009 to July 20, 2009. Although acknowledging the possibility that claimant may have a permanent disability resulting in a loss of use of an extremity, the WCLJ found no medical evidence supporting such a finding at that time. Claimant requested review by the Workers' Compensation Board, arguing that the employer should not be allowed to reserve the right to reimbursement contingent on a future schedule loss of use award. Alternatively, claimant's counsel requested that it be awarded counsel fees.
The employer claims that it paid claimant wages in lieu of compensation for this time period totaling $9,756.60.
On review, the Workers' Compensation Board found that the employer had waived any current reimbursement, but had reserved its right to future reimbursement, contingent on a schedule loss of use award made on this claim. Further, the Board concluded that since there were no payments currently being made to claimant and no current reimbursement owed to the employer, there is no source of funds upon which a lien for counsel fees can attach. Based on the lack of such a source of funds, the Board denied the request for counsel fees. Claimant now appeals.
Pursuant to Workers' Compensation Law § 25(4)(a), “[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due, provided [the employer's] claim for reimbursement is filed before [an] award of compensation is made.” Further, “an employer has the right to reimbursement for the full amount of wages paid during a claimant's period of disability from the claimant's schedule award of workers' compensation benefits” ( Matter of Hendrick v. City of Albany Police Dept., 227 A.D.2d 808, 808, 642 N.Y.S.2d 434 [1996]; accord Matter of Monteleone v. Town of N. Castle, 73 A.D.3d 1422, 1423, 900 N.Y.S.2d 920 [2010] ). Here, the employer filed a timely claim for reimbursement, which included proof of the terms of its benefit plan and the amount requested ( see Workers' Compensation Law § 25[4][c] ). We discern nothing in the applicable statute that prohibits the employer from applying to be reimbursed only in the event of a future schedule loss of use award. Accordingly, we find no abuse of discretion by the Board in limiting the source of reimbursement to a future schedule award.
We do, however, find that the Board should not have denied the request for counsel fees based upon the fact that no new award money is currently flowing to claimant. A lien for counsel fees “attaches to any compensation awarded,” and the fact that there is presently no balance due to claimant does not necessarily preclude an award of such fees, payable either now or as a lien against any future awards made to claimant ( Matter of Dickman v. City of New York, 25 A.D.2d 931, 931–932, 270 N.Y.S.2d 304 [1966], affd. 18 N.Y.2d 969, 278 N.Y.S.2d 208, 224 N.E.2d 717 [1966]; see Matter of Scandale v. New York Tel. Co., 55 A.D.2d 761, 761, 390 N.Y.S.2d 465 [1976]; Matter of Glickman v. New York State Dept. of Taxation & Fin., 35 A.D.2d 1055, 1055, 317 N.Y.S.2d 82 [1970], lv. denied 28 N.Y.2d 485, 321 N.Y.S.2d 1025, 269 N.E.2d 834 [1971]; compare Matter of Westbury Transport., Inc., 2001 N.Y. Wrk. Comp. 9610566 [2001] ). Therefore, the matter must be remitted for further consideration by the Board.
ORDERED that the decision is modified, without costs, by reversing so much thereof as denied the request for counsel fees; matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur.