State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 518891 

________________________________

In the Matter of the Claim of

JAMES McCABE,

Respondent,

v

ALBANY COUNTY SHERIFF'S MEMORANDUM AND ORDER

DEPARTMENT et al.,

Appellants.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: April 22, 2015

Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.

__________

Walsh & Hacker, Albany (Kelly B. Dean of counsel), for

appellants.

Law Firm of Alex C. Dell, PLLC, Albany (Alex C. Dell of

counsel), for James McCabe, respondent.

__________

Garry, J.

Appeal from a decision of the Workers' Compensation Board,

filed August 27, 2013, which, among other things, ruled that

claimant's counsel fee award was a lien against compensation

awarded as a credit to the employer.

Claimant was employed as a correction officer by the Albany

County Sheriff's Department, a self-insured employer. While

performing his duties in 2006, he sustained various injuries that

prevented him from working. Thereafter, he was paid his full
-2- 518891 

wages by the employer pursuant to General Municipal Law § 207-c. 

Claimant's undisputed workers' compensation claim was established

for several occupational injuries arising from this incident,

including an injury to his left knee, and he was awarded

compensation payable to the employer as a credit for the

statutory benefits already paid (see Workers' Compensation Law

§ 30 [3]). The claim was later amended to include a

consequential injury. In June 2008, claimant retained new

counsel, who successfully amended the claim again to include

additional consequential injuries and, as a result, was awarded

counsel fees in the amount of $2,400, payable from compensation

awarded as reimbursement to the employer. 

In March 2010, claimant fell and sustained injuries after

his left knee gave way. After further medical evaluation,

claimant's physician determined that claimant had new

consequential injuries and, following a hearing before a Workers'

Compensation Law Judge, the claim was amended to include

additional consequential injuries. Claimant was also awarded

compensation for six periods of temporary total or partial

disability, payable as reimbursement to the employer, and counsel

fees in the amount of $7,000 as a lien against the compensation

award. Upon review, the Workers' Compensation Board modified the

determination of the Workers' Compensation Law Judge by reducing

the award of counsel fees to $6,000, and otherwise affirmed. The

employer and its third-party administrator (hereinafter

collectively referred to as the employer) appeal.

General Municipal Law § 207-c requires municipal employers

to pay full wages to correction officers who are injured in the

performance of their duties. Workers' Compensation Law § 30 (3)

provides that the amount of such payments "shall be credited

against any award of compensation" that may also be made to such

an officer. The employer contends that the mandatory language of

the Workers' Compensation Law provision entitles employers to

full credit for such payments and, thus, precludes the attachment

of a lien for counsel fees. However, Workers' Compensation Law

§ 24 likewise uses mandatory language in providing that, when

approved by the Board, counsel fees "shall become a lien upon the

compensation awarded . . . [and] shall be paid therefrom only in
-3- 518891 

the manner fixed by the [B]oard" (emphasis added). The lien

attaches when the compensation is awarded "and takes precedence

over the employer's right to reimbursement of funds previously

paid to the claimant-employee" (Matter of Height v Hicksville

Firestone Dealer Store, 35 NY2d 692, 693 [1974]). The purpose of

enacting Workers' Compensation Law § 30 (3) was not to preclude

counsel fees, but "to avoid duplicate benefits to an injured

[officer], the combined total of which might exceed the salary

[the officer] would have received for the period" if the injury

had not occurred (Mem of Indus Commr, Bill Jacket, L 1963, ch

280, § 6; see Matter of Leone v Oneida County Sheriff's Dept., 80

NY2d 850, 852 [1992]). Workers' Compensation Law § 30 (3) must

be harmoniously interpreted with the Workers' Compensation Law as

a whole and with General Municipal Law § 207-c (see Matter of

Leone v Oneida County Sheriff's Dept., 166 AD2d 74, 76-77 [1991],

affd 80 NY2d 850 [1992]). We find nothing in the statutory

language indicating a legislative intent to treat employees who

receive benefits under General Municipal Law § 207-c differently

from other injured employees by departing from the statutory

scheme for payment of counsel fees set forth in Workers'

Compensation Law § 24. 

Contrary to the employer's argument, the fact that the lien

here was applied to a credit for benefits already paid by the

employer and no reimbursement was paid to the employer from which

the counsel fees could be deducted does not require a different

result. The term "compensation" is defined as "the money

allowance payable to an employee or to his [or her] dependents as

provided for in this chapter" (Workers' Compensation Law § 2

[6]). The term is to be broadly construed to advance the

interests of injured workers and is not limited to benefits paid

directly to the employee (see Matter of Keser v New York State

Elmira Psychiatric Ctr., 92 NY2d 100, 104-105 [1998]; Matter of

Shea v Icelandair, 63 AD3d 30, 32 [2009]). Workers' Compensation

Law § 24 contains no requirement that a fund must exist or that

payments must be exchanged to which a lien for counsel fees can

attach, and the fact that an employer is a self-insurer who must

pay the lien directly "is insufficient reason to deny the

established precedence of such a lien" (Matter of Dickman v City
-4- 518891 

of New York, 25 AD2d 931, 932 [1966], affd 18 NY2d 969 [1966]).1

To construe the statute as the employer suggests would

disadvantage employees who receive benefits pursuant to General

Municipal Law § 207-c by making it difficult or impossible for

them to find legal representation, and would not fulfill the

beneficial purposes of the Workers' Compensation Law (see Matter

of Leone v Oneida County Sheriff's Dept., 80 NY2d at 852; Matter

of Shea v Icelandair, 63 AD3d at 32).2

The Board did not abuse its "broad discretion" in making

the disputed fee award (Matter of Marchese v New York State Dept.

of Correctional Servs., 293 AD2d 920, 921-922 [2002]). The

evidence submitted to the Board revealed that counsel represented

claimant for a lengthy period, filed RFA-1 forms on his behalf,

made numerous telephone calls to claimant, opposing counsel and

the adjuster, appeared at a hearing, and successfully established

a claim for claimant's consequential injuries. We find the

Board's determination that claimant derived an economic benefit

from these services to be within its province and, as it was not

1 Contrary to the employer's argument, this Court's

decision in Matter of Cummins v North Med. Family Physicians (283

AD2d 861 [2001], lv denied 96 NY2d 720 [2001]) does not preclude

an award of counsel fees where, as here, no payments for lost

wages passed to the claimant. This Court subsequently disavowed

any such "sweeping conclusion[]" and held that Cummins should be

limited to its facts, which differ sharply from those presented

here (Matter of Shea v Icelandair, 63 AD3d at 32 n).

2 The employer's contention that the Board's determination

constitutes an unexplained departure from precedent is rejected. 

In the decisions cited, the determination not to award counsel

fees resulted from the exercise of discretion in considering the

facts presented, and the Board made no finding as to whether

Workers' Compensation Law § 30 (3) precluded an award of counsel

fees as a lien against an employer's credit (see Employer: Albany

County, 2013 WL 3480788, 2013 NY Wrk Comp LEXIS 5940 [WCB No.

G045 8941, July 3, 2013]; Employer: City of Schenectady, 2013 WL

1364521, 2013 NY Wrk Comp LEXIS 3929 [WCB No. G045 1670, Mar. 29,

2013]). 
-5- 518891 

arbitrary, capricious or unreasonable as a matter of law, it will

not be disturbed (see Matter of McDowell v La Voy, 83 AD2d 680,

680-681 [1981]; see also Employer: NYC Administration For, 2014

WL 1371482, *4, 2014 NY Wrk Comp LEXIS 2173, *10-*11 [WCB No.

0571 442, Apr. 7, 2014]).

Lahtinen, J.P., Devine and Clark, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court