                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   520221
________________________________

In the Matter of the Claim of
   BRIAN PICKERING,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

CAR WIN CONSTRUCTION, INC.,
   et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 23, 2015

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

                             __________


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

      Weiss, Wexler & Wornow, PC, New York City (Andrea Catalano
of counsel), for Car Win Construction, Inc., respondent.

                             __________


McCarthy, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed May 7, 2014, which, among other things, disallowed an award
of counsel fees.

      Claimant suffered work-related injuries and was awarded
workers' compensation benefits. He thereafter requested consent
from the employer's workers' compensation carrier to settle a
third-party claim. The carrier and claimant entered into a
settlement agreement pursuant to Workers' Compensation Law § 32,
                                 -2-                520221

whereby the carrier agreed to waive a recoverable lien of
$527,252.42 for past benefits against the proceeds of the third-
party action and claimant waived his right to any future workers'
compensation benefits and discharged the carrier from any further
liability under the claim. Pursuant to the settlement agreement,
claimant sought $52,725 in counsel fees based upon the negotiated
waiver of the lien.1 A Workers' Compensation Law Judge approved
the settlement agreement, but denied the payment of counsel fees.
The Workers' Compensation Board upheld that decision and claimant
now appeals.

      We affirm. Pursuant to Workers' Compensation Law § 24,
counsel fees approved by the Board "shall become a lien upon the
compensation awarded" and 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]). Claimant contends that the carrier's waiver of its lien
against the third-party settlement is equivalent to a payment of
compensation and counsel fees based upon services provided in
securing the waiver should be approved. While "the term
'compensation' should be liberally construed to advance the
interest of injured employees" (Matter of Shea v Icelandair, 63
AD3d 30, 32 [2009]; see Matter of Keser v New York State Elmira
Psychiatric Ctr., 92 NY2d 100, 104-106 [1998]), we find no abuse
of the Board's discretion in its finding that a waiver by a
workers' compensation carrier of a lien against a third-party
recovery is not compensation within the meaning of the Workers'
Compensation Law (compare Matter of McCabe v Albany County
Sheriff's Dept., 129 AD3d 1348, 1349-1350 [2015]). Although
claimant does benefit from the waiver of the lien, the benefit
derived relates to the third-party proceeds and not to
compensation awarded him under the Workers' Compensation Law.
Accordingly, the Board's refusal to award counsel fees will not
be disturbed.

         Egan Jr., Lynch and Devine, JJ., concur.


     1
        The requested amount reflects 15% of the $351,501.61 that
claimant's third-party counsel was holding in escrow in order to
satisfy the carrier's lien.
                        -3-                  520221

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
