                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 23, 2017                    522966
________________________________

In the Matter of the Claim of
   ALBANA SHIQERUKAJ,
                    Claimant,
      v

GOTHAM BROAD, LLC, et al.,
                    Respondents.             MEMORANDUM AND ORDER

WORKERS' COMPENSATION BOARD,
                    Respondent.

JOSEPH A. ROMANO,
                    Appellant.
________________________________


Calendar Date:   January 9, 2017

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

                              __________


      Law Office of Joseph A. Romano, New York City (Joseph A.
Romano of counsel), for appellant.

      Vecchione, Vecchione, Connors & Cano, LLP, Garden City
(Brian M. Anson of counsel), for Gotham Broad, LLC and another,
respondents.

                              __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board
filed December 3, 2015, which, among other things, determined the
amount of counsel fees due to claimant's counsel.

      In March 2012, claimant, a maintenance worker, sustained
work-related injuries to her head, neck and back when she fell
                              -2-                522966

down a staircase while carrying bags of garbage, and her
subsequent claim for workers' compensation benefits was
established. Following a hearing, a Workers' Compensation Law
Judge (hereinafter WCLJ) found, among other things, that claimant
had sustained a 75% loss of wage-earning capacity and awarded her
benefits. In conjunction therewith, the WCLJ also awarded
claimant's counsel $4,700 in fees. Upon administrative review,
the Workers' Compensation Board modified the WCLJ's decision,
finding – insofar as is relevant here – that claimant had
sustained a 45% loss of wage-earning capacity and, further, that
a reduction in the award of counsel fees from $4,700 to $3,000
was warranted. Claimant's counsel now appeals – arguing that the
Board erred in reducing the amount of counsel fees awarded.

      "Workers' Compensation Law § 24 vests in the Board broad
discretion with regard to the approval of counsel fees, and such
approval will be disturbed by this Court only if it is arbitrary,
capricious, unreasonable or otherwise constitutes an abuse of the
Board's discretion" (Matter of Bell v Genesee Inn, 35 AD3d 940,
941 [2006] [internal quotation marks and citations omitted]). In
reducing the counsel fees in this case, the Board apparently
relied upon the OC-400.1 form submitted by claimant's attorney,
as well as claimant's financial status.

      Our review of the OC-400.1 form submitted in this case
reveals that it is very similar to the form submitted by counsel
in Matter of Tenecela v Vrapo Constr. (146 AD3d 1217, 2017 NY
Slip Op 00367 [2017]) – a form that the Board ultimately deemed
to be inadequate in that case (id. at *2). Specifically,
although the form here sets forth the dates upon which services
were rendered to claimant and the number of hours allocated
thereto, the description of those services is largely
indecipherable. More to the point, the form tendered by counsel
in this matter appears to allocate "25+" hours to an unspecified
date or range of dates, thereby "making impossible any assessment
of the services rendered" (id.). Finally, the Board premised its
award (in part) upon "the financial status of . . . claimant"
but, other than noting a reduction in the loss of wage-earning
capacity suffered by claimant, the Board's decision makes no
reference to – and the record sheds no light upon – claimant's
financial status. For these reasons, the Board's award of
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counsel fees is incapable of intelligent appellate review, and we
remit this matter to the Board for reconsideration thereof.1

        McCarthy, J.P., Lynch, Clark and Mulvey, JJ., concur.



      ORDERED that the decision is modified, on the law, without
costs, by reversing so much thereof as awarded counsel fees in
the amount of $3,000; matter remitted to the Workers'
Compensation Board for further proceedings not inconsistent with
this Court's decision; and, as so modified, affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    1
        12 NYCRR 300.17 requires that when an attorney
representing a claimant before the Board seeks a fee in excess of
$450, he or she must complete and file "an application upon . . .
form OC-400.1 in each instance where a fee is requested pursuant
to [Workers' Compensation Law §§ 24 and 24-a]," and such form
"shall be accurately completed" (12 NYCRR 300.17 [d] [1]).
