                          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
