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Sep 27, 2019

NY Board’s $500 Penalty Against Claimant’s Attorney Affirmed

A $500 penalty assessed against a claimant’s attorney by New York’s Workers’ Compensation Board was affirmed by a state appellate court [Matter of Curcio v Sherwood 370 Mgt., LLC, 2019 N.Y. App. Div. LEXIS 6838 (3d Dept. Sept. 26, 2019)]. The court noted that N.Y. Workers' Comp. Law § 114-a(3)(ii) permitted the Board to assess counsel fees against an attorney who has instituted or continued proceedings without reasonable grounds. Here, the claimant's attorney had sought administrative review of the WCLJ's decision that found the employer/carrier's payment of compensation was timely. The Board said that application N.Y. Workers' Comp. Law § 25(3)(f) required the employer/carrier's payment to be made within 10 days and under the facts of the case, payment was clearly made on the 10th day.

Background

In 2013, claimant suffered a work-related injury and established a claim for workers’ compensation benefits. In March 2017, the parties reached a waiver of compensation agreement pursuant to N.Y. Workers’ Comp. Law § 32 to cover the claim, as well as other open claims.

The Board found that the settlement agreement was deemed to have been submitted on May 18, 2017. It further directed that if neither party withdrew from the agreement by May 28, 2017, the Board’s approval of the agreement would “become final and conclusive on all parties on May 29, 2017,” and that the payment pursuant to the agreement had to be made within 10 days of that date. Neither party withdrew, and the employer's workers’ compensation carrier paid claimant pursuant to the waiver agreement on June 9, 2017.

Memorial Day Holiday

Claimant thereafter requested that a penalty be imposed against the carrier for late payment pursuant to § 25(3)(f). The Board initially imposed the penalty and the carrier objected, arguing that because May 29, 2017 was the Memorial Day holiday, the agreement became final on May 30, 2017, making the June 9, 2017 payment timely. Following a hearing, a WCLJ found that the payment was timely.

Appeal and Assessment of Penalty

Claimant sought administrative review of the WCLJ's decision. Claimant acknowledged in his request that, due to the holiday, the agreement became final on May 30, 2017, but maintained that the 10-day time limit from that date lapsed on June 8, 2017, making the payment untimely. The Board rejected this argument and affirmed the WCLJ’s decision, finding that the 10-day time limit lapsed on June 9, 2017 and that the carrier's payment made on that day was timely. The Board also assessed a $500 penalty against claimant's attorney for seeking administrative review without reasonable grounds. Claimant appealed to the appellate division.

Date of Reckoning

The appellate court noted that under N.Y. Workers’ Comp. Law § 25(3)(f), a 20 percent penalty was assessed where the employer or carrier failed to pay within 10 days. It noted further, however, that under N.Y. Gen. Constr. Law, § 20, computation of the time period was “exclusive of the calendar day from which the reckoning is made.”

The court continued that here, claimant acknowledged in his request for administrative review that, due to the holiday, the waiver agreement became final on May 30, 2017. Accordingly, the carrier had 10 days, or until June 9, 2017, to make the payment. Insofar as it was undisputed that the carrier paid claimant on June 9, 2017, the Board properly found that the payment was timely.

Based on the foregoing, the appellate court concluded that substantial evidence supported the Board’s decision that, by requesting administrative review of the WCLJ’s decision based solely on a miscalculation of the 10-day period running from May 30, 2017, claimant’s attorney continued the proceeding without reasonable cause.