State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 520643 

________________________________

In the Matter of the Claim of

RUTH A. GALUSKI,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF

MILITARY AND NAVAL AFFAIRS

et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: December 15, 2015

Before: Peters, P.J., Garry, Rose and Devine, JJ.

__________

Law Firm of Alex Dell, PLLC, Albany (Courtney E. Holbrook

of counsel), for appellant.

William O'Brien, State Insurance Fund, Albany (Thomas A.

Phillips of counsel), for New York State Division of Military and

Naval Affairs and another, respondents.

__________

Rose, J.

Appeal from a decision of the Workers' Compensation Board,

filed May 5, 2014, which declined to impose a penalty upon the

employer pursuant to Workers' Compensation Law § 25 (3) (f).

Claimant sustained a work-related back injury on November

29, 2011 and was out of work from December 5, 2011 until January

3, 2012. During this time, she received her full wages, as she
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had accumulated enough leave credits to cover the entirety of her

absence. Claimant also applied for workers' compensation

benefits, and a Workers' Compensation Law Judge (hereinafter

WCLJ) issued a decision in March 2012, which granted her

application, awarded her compensation and directed her employer's

insurance carrier to reimburse the employer for wages it had paid

to claimant during her injury-related lost time from work. The

carrier timely reimbursed the employer within 10 days of the

WCLJ's decision, but the employer failed to restore claimant's

accrued leave credits until February 2013. Arguing that the

employer's restoration of leave credits was untimely pursuant to

Workers' Compensation Law § 25 (3) (f), claimant sought

imposition of a penalty. After a hearing, the WCLJ declined to

impose a penalty, and a panel of the Workers' Compensation Board

upheld that decision. Claimant now appeals. 

We cannot agree with claimant's contention that the Court

of Appeals' holding in Matter of Keser v New York State Elmira

Psychiatric Ctr. (92 NY2d 100 [1998]) requires reversal of the

Board's decision. Initially, Workers' Compensation Law § 25 (3)

(f) provides, in relevant part, that, "[i]f the employer or its

insurance carrier shall fail to make payments of compensation

according to the terms of the award within [10] days . . ., there

shall be imposed a penalty equal to twenty percent of the unpaid

compensation." It is true, as claimant argues, that, in Matter

of Keser, the Court interpreted "the term 'compensation' to have

a broader meaning than merely monies received by or paid to an

employee" (id. at 105). However, the Court utilized this

interpretation to conclude only that monetary reimbursements in

the form of credits made by an insurance carrier to an employer –

not the subsequent restoration of leave time by an employer to an

employee – qualify as "compensation" that must be timely

remitted, and, even then, only if the terms of the award require

such reimbursement (id. at 105-106). Indeed, as the Court

stated, "[t]he focus of the penalty inquiry is on whether there

has been timely compliance with the terms of the award, as

opposed to the mechanics of payment" (id. at 105).

Here, the terms of the WCLJ's initial award provide for

claimant's direct compensation, which was paid in advance by the

employer when claimant received her full wages, as well as an
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express requirement that the carrier reimburse the employer for

the wages it had paid to claimant. The award makes no mention,

however, of any obligation on the employer's part to timely

restore claimant's accrued sick leave. Thus, because restoration

of leave time was not included in the terms of the award, we must

conclude that the Board properly upheld the WCLJ's decision and

declined to impose a penalty against the employer.

Peters, P.J., Garry and Devine, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court