                           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
                              -2-                520643

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
                              -3-                  520643

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
