Text of the Board’s decision. Publisher headnotes and editorial material are omitted. Linked from the SLU Worksheet notes.
Workers' Compensation Board State of New York
Case No. G315 2092
Carrier ID No. W0722282021 W846505
November 5, 2024
Police, Fire, Sanitation and Corrections CNY Attn: Maria Ziccardi 350 Jay Street, 9th Fl Brooklyn, NY 11201
Severance, Burko, Spalter, Masone & Laurette PC 16 Court Street, Suite 2400
Brooklyn, NY 11241
Date of Accident 3/31/2022
The claimant and the self-insured employer (SIE) seek review of the Workers' Compensation Law Judge's (WCLJ) decision filed on December 13, 2023. The claimant filed a timely rebuttal to the SIE's appeal.
The issues presented for administrative review are:
1. Whether the claimant has a 25% schedule loss of use (SLU) of the right foot.
2. Whether the record supports the fee of $3, 000.00 granted to the claimant's attorney as a lien on reimbursement.
In a C-4.3 (Doctor's Report of MMI/Permanent Partial Impairment) dated January 24, 2023, the claimant's treating physician, Dr. Quan indicated that the claimant was involved in a work related accident on March 31, 2022, resulting in a right Achilles tear. He found that the claimant had reached maximum medical improvement (MMI) and opined the claimant has a 40% SLU of the right ankle based on range of motion deficits: inversion and eversion to 5 degrees and flexion to 30 degrees. He noted that the claimant had returned to work and can work his usual work activities.
In an independent medical examination (IME) report dated April 13, 2023, the SIE's consultant, Dr. Hussamy, diagnosed the claimant with a right ankle/foot strain. The claimant was found to have a 15% SLU of the right ankle based on range of motion deficits: plantar flexion of 20 degrees and inversion of 20 degrees.
Dr. Hussamy testified via deposition on August 21, 2023, in accordance with his IME report. He reviewed the claimant's MRI of the right ankle, which showed a full thickness tear of the Achilles tendon. His SLU opinion was based on the claimant's loss of plantar flexion and a loss of inversion. He found the claimant to have full extension.
On August 23, 2023, the SIE filed a C-107 (Employer's Reimbursement Request) indicating that the claimant was paid full salary for the period from April 6, 2022 to November 1, 2022, an amount totaling $56, 621.79, and that reimbursement was being requested.
A hearing was held on December 8, 2023. The claim was established for a work related injury to the right ankle, which the claimant sustained on March 31, 2022. The claimant's attorney noted that the claimant suffered an Achilles tendon rupture and requested that Dr. Quan's SLU opinion, that the claimant has a 40% SLU of the right ankle, be implemented. The SIE's attorney conceded that the claimant had an Achilles tendon rupture, and indicated that per the Board's Impairment Guidelines (Guidelines), an Achilles tendon rupture amounts to a 20% to 25% SLU, so even if Dr. Hussamy's opinion is discredited, the most the claimant can receive would be a 25% SLU. The WCLJ noted that [[Section 8.5], Special Consideration [#6] under the Guidelines provides for a 20 to 25% SLU due to an Achilles tendon rupture. The WCLJ found that the Special Consideration is applicable in this matter and that the claimant has a 25% SLU of the right ankle. The WCLJ also found that the SIE is not entitled to a credit for the claimant's prior 7.5% SLU awarded in WCB #G1526893, as that injury just involved a sprain/strain. Awards were directed for the period from April 1, 2022 to April 6, 2022 no compensable lost time, from April 6, 2022 to October 31, 2022 at $1, 063.05, temporary total disability, reimburse employer, and from October 31, 2022 to December 8, 2023 no compensable lost time. An attorney's fee in the amount of $3, 000.00 was awarded to the claimant' attorney as a lien on reimbursement. The WCLJ's findings were memorialized in a decision filed on December 13, 2023. The Board Panel notes that the written decision contains a typographical error and mistakenly indicates that the claim and the SLU pertain to the left foot, instead of the correct right ankle/foot.
On appeal, the claimant argues that he should be found to have an overall 40% SLU of the right ankle. He asserts that he suffered a right Achilles tendon rupture, but he also has significant restricted range of motion as a result of the accident, thus his SLU should not be limited to only 25%. His attorney has indicated that no additional attorney fee is requested, other than that which was awarded at the December 8, 2023 hearing.
On appeal, the SIE argues that the awards directed at the December 8, 2023 hearing were not an increase of awards as contemplated by Workers' Compensation Law (WCL) § 24(2)(b) and therefore, the fee awarded to claimant's attorney as a lien on reimbursement should be rescinded.
In rebuttal, the claimant argues that an attorney's fee was properly awarded to his attorney as a lien on reimbursement. He asserts that the Board has recognized the right of claimant's counsel to a fee as a lien on reimbursement.
Schedule Loss of Use “Whether a claimant is entitled to [a schedule loss of use] award and, if so, the resulting percentage are factual questions for the Board to resolve” and the Court's review is limited to whether the Board's determination is supported by substantial evidence (Matter of Maunder v B & B Lbr. Co., 166 AD3d 1261 [[[2018] [internal citations omitted]; see also Matter of Gilliam v Doccs Wende Corr. Facility, 190 AD3d 1080 [2021]).
In Matter of Blue v New York State Off. of Children & Family Servs., 206 AD3d 1126 (2022) the Appellate Division, Third Department found that when chondromalacia patella has a specific schedule loss of use range set forth in the Special Consideration #4, the Board should not prohibit additional amounts for range of motion deficits caused by a diagnosis of meniscus tear.
Subsequently, the Court has clarified that its holding in Blue is not limited to only chondromalacia patella and meniscus injuries, and “applies with equal force where a claimant alleges [an] impairment due to both a condition encompassed by a special
consideration and a diagnosis that is not governed by the special consideration at issue” (Matter of Garrow v Lowe's Home Ctrs. Inc., 227 AD3d 1242 [2024]).
Further, “the Board should determine the appropriate SLU percentage, whenever possible, in a manner that is ‘consistent with the plain language of the impairment guidelines' (Matter of Zuhlke v Lake George Cent. Sch. Dist., 220 AD3d 1028 [2023])” (Matter of Albany Marble Inc, 2024 NY Wrk Comp G2098201). Therefore, when a “literal interpretation of the Guidelines would unfairly result in a lower SLU based on the application of [a] Special Consideration ... than claimant would receive based on [the] range of motion deficits alone ... without regard to the special consideration,” the SLU award should be “the higher of these two values” (Albany Marble Inc, 2024 NY Wrk Comp G2098201).
Here, the Board Panel finds that Dr. Quan credibly found the claimant to have a 40% SLU of the right ankle based on range of motion deficits: inversion and eversion to 5 degrees and flexion to 30 degrees. Since the claimant sustained an Achilles tendon rupture, Chapter 8.5, Special Consideration #6 of the Guidelines applies in this matter. In accordance with the Special Consideration, the claimant would have a 25% SLU of the foot. Under Matter of Albany Marble, the higher of the claimant's SLU based on range of motion deficits or the claimant's SLU based on the Special Consideration for an Achilles tendon rupture is to be used. Here, the claimant had a 40% SLU based on range of motion deficits and a 25% SLU based on an Achilles tendon rupture, therefore, the claimant is awarded a 40% SLU of the right ankle.
Attorney's Fee Because the fee requested in this case is based on an SLU award, the fee is calculated pursuant to WCL § 24(2)(c), which provides:
When an award is made for schedule loss of use or permanent facial disfigurement pursuant to paragraphs a through t of subdivision three of section fifteen of this article, the attorney's fee shall be fifteen percent of the compensation due in excess of the employer or carrier's previous payments.
Prior to the amendment of WCL § 24, the customary practice was for attorneys to request, and for the Board to approve, fees based solely on the portion of an SLU which was payable to the claimant, and not any portion of the SLU that was payable as reimbursement to the employer pursuant to WCL § 25(4). In such instances, claimant's attorneys would ordinarily request a fee that was between ten and twenty percent of the award payable to the claimant and the Board would either approve the fee, if it was found to be commensurate with the services rendered, or approve a reduced fee based on the circumstances. The clear intent of the amendment to WCL § 24 was to eliminate the Board's discretion in setting attorney's fees and to impose a standardized fee structure. Pursuant to WCL § 24(2)(c), “the attorney's fee shall be fifteen percent of the compensation due in excess of the employer or carrier's previous payments.” An attorney cannot request a larger fee and the Board is without the discretion to reduce the fee below the 15% set by statute.
There is nothing in the language of WCL § 24(2)(c) or in the legislative history that evidences an intent to deviate from the prior practice of basing attorney's fees solely on the portion of an SLU payable to the claimant, and not any portion of the SLU that was payable as reimbursement to the employer. Therefore, the language in WCL § 24(2)(c), providing that the “employer or carrier's previous payments” are to be deducted from the total SLU award before calculating the fee should be interpreted as including both prior payment of compensation benefits and payment of wages by the employer which are subject to reimbursement (see, Matter of New York City Health & Hospital, 2024 NY Wrk Comp G2851100).
WCL § 24(4) provides that once approved, an attorney's fee “shall become a lien upon the compensation awarded, ... but shall be paid therefrom only in the manner fixed by the board.” Pursuant to that language, which predates the 2023 amendment to WCL § 24, “the Board is vested with broad discretion with regard to the...manner of payment of counsel fees” (Matter of Enoch v. NYS Dept. of Corrections, 179 AD3d 1430 [2020][internal citations and quotation marks omitted]).
Although a fee to a claimant's attorney may be paid out of awards which are payable as reimbursement to the employer, such as when no awards are payable directly to a claimant (see Matter of Dickman v City of New York, 25 AD2d 931 [1966], affd 18 NY2d 969 [1966]; see also Matter of Scandale v New York Tel. Co., 55 AD2d 761 [1976]), when there are awards payable to claimant, it has been the practice of the Board to direct that any attorney's fee be payable out those awards in order to avoid “a windfall to claimant, essentially making the employer subsidize a portion of claimant's legal expenses” (Matter of Enoch v. NYS Dept. of Corrections, 179 AD3d 1430, 1433 [2020]; see also Matter of Razzano v. NYS Dept. of Corrections and Community Supervision, 184 AD3d 939 [2020]). Therefore, attorneys' fees should only be payable out of reimbursement to an employer when there are no awards payable directly to the claimant, or when the awards payable to the claimant are insufficient to satisfy the entire fee.
Based on the foregoing, the Board Panel finds that the claimant's attorney was properly awarded an attorney fee in this matter. The claimant has been found to have a 40% SLU of the right foot. The total SLU award is $87, 170.10. Employer reimbursement in the amount of $56, 621.79 has been directed. The claimant's attorney has indicated that no additional attorney fee is requested other than that which was awarded at the December 8, 2023 hearing, which was a $3, 000.00 fee. As there is money moving to the claimant, the Board Panel finds that the $3, 000.00 fee awarded to the claimant's attorney shall be paid out of the money moving to the claimant.
Therefore, the Board Panel finds, upon review of the record and a preponderance of the evidence, that the claimant has a 40% SLU of the right ankle, entitling him to 82 weeks of benefits, for a total award of $87, 170.10. The employer is entitled to reimbursement in the amount of $56, 621.79; in addition, the claimant's attorney is awarded an attorney's fee in the amount of $3, 000.00 and such fee is to be paid out of the money moving to the claimant.
ACCORDINGLY, the WCLJ's decision filed on December 13, 2023 is MODIFIED to find the claim is established for the right ankle and the claimant has a 40% SLU of the right foot, entitling him to 82 weeks of benefits, for a total award of $87, 170.10; the employer is entitled to reimbursement in the amount of $56, 621.79; the $3, 000.00 attorney's fee awarded to the claimant's counsel is to be paid out of the money moving to the claimant. No further action is planned by the Board. All Concur.
Renee L. Delgado Freida Foster Arelis Tavares