N.Y. Court Nixes $480 Counsel Fee Request Related to Late Installment Penalties

Case File

An attorney for a New York workers' compensation claimant was awarded attorney's fees, but his push for an additional award that would be payable from penalties imposed in the case ran into a statutory problem.

Case

Gonzalez v. Northeast Parent & Child Society, No. CV-23-1272 (N.Y. App. Div. 11/14/24).

What Happened

The claimant filed a claim for workers' compensation benefits after he was injured at work, and the claims was established for a causally related injury to the claimant's low back.

The claimant's counsel was granted a fee of $2,189.93 as a lien on the claimant's award. Later, the claimant's counsel requested a hearing to address a late penalty, noting that the carrier had failed to pay the claimant's awards and counsel fee. The next day, the carrier paid the claimant the overdue awards.

At the hearing, the Workers' Compensation Law Judge asses a late penalty of $2,744.83, which was 20% of the award that it had paid untimely. A latest installment penalty in the amount of $205.24 was also assessed.

The claimant's counsel requested an additional $480 in counsel fees, but the request was denied, and the Workers' Compensation Board upheld the denial.

The claimant appealed.

Rule of Law

In New York, claims of attorneys and counselors-at-law for legal services are not enforceable unless approved by the board, and nothing in the statute provides for the award of counsel fees payable from a penalty imposed.

What Appellate Division Said

The court affirmed the denial, reasoning that if the legislature wanted provide for the award of counsel fees payable from penalties imposed, it could have done so by including it among the counsel fees schedule expressly set forth under the Workers' Compensation Law, which it did not do.

Takeaway

In New York, counsel fees are not payable from penalties imposed.

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