Recent NY Workers Comp Decision Can Alter Attorney Practices

Burke v. Verizon Services Group, 2011 NY Slip Op 06613, 9/29/11 reaffirms that the Board’s informal rules regarding attorney fees are an error of law.

 

 

The issue was whether or not the Board could award an attorney fee where there was “no new money moving” but there was an award for money already paid. For decades, Board policy has been not to award fees unless new money is being awarded. The statute, however, (Sect 23, NY WCL) states that an approved fee is a lien on the award. The case held that it was error for the Board to refuse to approve a fee solely because money had already been paid prior to the making of the formal award at a hearing. (WCxKit)

 

 

The decision opens a broad range of possible fee opportunities for claimants’ lawyers. Until now, lawyers have been reluctant to take any claim where there might not be a possibility of new monetary payments even though the claim had many unresolved issues, principally medical treatment.

 

 

The Board, refusing to recognize that services solely related to medical treatment could warrant a fee, left thousands of claimants without counsel unless they were willing to lose time from work, which would result in a fee opportunity. That point of view seemed to indicate that the Board favored lost time more than medical treatment resulting in no lost time.

 

 

The Burke decision indicates that an attorney can request a fee, even if there will be no award of new money, and retain a lien until, eventually, new money will be paid in the future. Or, the fee can be paid as a lien on a current award, and deducted later from future payments. (WCxKit)

 

 

The decision seems to give attorneys a slight windfall but, upon further analysis, results in fewer attempts to magnify periods of disability and rates solely to produce fee opportunities.