Greenberg v. New York City Transit Authority

OPINION OF THE COURT

R.S. Smith, J.

We hold that an award of damages under Workers’ Compensation Law § 120 to an employee who has been discharged for claiming or attempting to claim workers’ compensation benefits may include predecision interest.

Facts and Procedural History

Claimant was fired by the New York City Transit Authority in 1994, shortly after making a claim for workers’ compensation benefits. The Workers’ Compensation Board found that the firing was retaliatory and so violated Workers’ Compensation Law § 120. Claimant, reinstated to his job in 1997, asked the Board to award him damages, in the form of back pay for the intervening three years. After an inexplicably long delay, a Workers’ Compensation Law Judge held a hearing in 2003, and rendered an award that included $35,469 in interest from the dates claimant’s wages should have been paid to the date of the damages hearing. The Judge also awarded claimant attorneys’ fees.

The Transit Authority appealed to the Workers’ Compensation Board, arguing that the award of interest was not authorized by statute. Claimant defended the Judge’s award, and also sought a supplemental award of attorneys’ fees for work done after the damages hearing. The Board modified the award to delete the provision for interest, finding no “binding legal authority which authorizes prejudgment interest on awards for damages pursuant to WCL Section 120.” The Board rejected claimant’s request for an additional attorneys’ fee.

The Appellate Division affirmed the Board’s decision. We now modify the Appellate Division’s order to reinstate the Workers’ Compensation Law Judge’s award of interest.

Discussion

Workers’ Compensation Law § 120 provides in relevant part:

“It shall be unlawful for any employer or his or her duly authorized agent to discharge or in any other *142manner discriminate against an employee as to his or her employment because such employee has claimed or attempted to claim compensation from such employer ....
“Upon finding that an employer has violated this section, the board shall make an order that any employee so discriminated against shall be restored to employment or otherwise restored to the position or privileges he or she would have had but for the discrimination and shall be compensated by his or her employer for any loss of compensation arising out of such discrimination together with such fees or allowances for services rendered by an attorney or licensed representative as fixed by the board.”
(Emphasis added.)

The main question here is whether an order under this section that an employee “shall be compensated ... for any loss of compensation” may include predecision interest. We hold that it may.

Two recent cases frame the debate. Claimant relies on Matter of Aurecchione v New York State Div. of Human Rights (98 NY2d 21 [2002]), which held that the State Division of Human Rights has discretion to award predecision interest on back pay awards for employment discrimination under the Human Rights Law (Executive Law art 15). The Transit Authority relies on Matter of Bello v Roswell Park Cancer Inst. (5 NY3d 170 [2005]), which held that back pay awards under Civil Service Law § 77 may not include predecision interest. We recognized in both of these cases that the authority for such interest awards must be found in statutes; we decided that the statute in Aurecchione granted that authority, but that the statute in Bello did not. We conclude that the present case is closer to Aurecchione than to Bello, because Workers’ Compensation Law § 120 is, in relevant ways, more similar to the Human Rights Law than to Civil Service Law § 77.

Section 120 is, like the Human Rights Law, an antidiscrimination statute. And like the Human Rights Law, section 120 “evinces a legislative intent to compensate fully victims of . . . discrimination” (Aurecchione, 98 NY2d at 25). The Human Rights Law provides for the “awarding of compensatory damages” to victims (Executive Law § 297 [4] [c] [iii]). Section 120 uses similar language: a victim “shall be compensated ... for any loss of compensation.” Section 120 also includes other *143language showing a generalized intention to undo harm done: victims are to be “restored to the position or privileges [they] would have had but for the discrimination.”

Civil Service Law § 77 is a different kind of statute. It provides that an employee fired in violation of the Civil Service Law “shall be entitled to receive and shall receive . . . the salary or compensation which he would have been entitled by law to have received . . . less the amount of any unemployment insurance benefits he may have received.” As we explained in Bello (5 NY3d at 173):

“The statute does not just create a general right to ‘compensation’; it is specific about what a claimant ‘shall be entitled to receive.’ It speaks of ‘salary or compensation’ — indicating that ‘compensation’ refers to bonuses or other nonsalary forms of payment. It provides for the deduction of unemployment insurance benefits. . . . We conclude that a legislature giving such careful attention to the components of a back pay award would have added the words ‘with interest’ if it had intended interest to be awarded.”

Workers’ Compensation Law § 120, by contrast, does create a “general right to ‘compensation.’ ” It does not specifically list what a claimant is entitled to receive, and does not use “compensation” in the narrow sense of nonsalary payment. From the text of section 120, it does not seem that the Legislature that enacted it was “giving . . . careful attention to the components of a back pay award.” It seems rather that the Legislature was making a general statement that victims of discrimination should be made whole.

Two other factors we relied on in Bello are also absent here. Awards under Civil Service Law § 77, unlike those under Workers’ Compensation Law § 120, are not reduced by the amounts claimants earn in other employment — so that Civil Service Law claimants, though they are denied predecision interest, may often receive more than the principal amount of their actual loss (see Bello, 5 NY3d at 173-174). And Civil Service Law § 77 specifically addresses recoveries against the State, raising sovereign immunity concerns that made us hesitant, in Bello, to find an implied right to the recovery of interest (id.).

For these reasons, we hold that predecision interest awards are permissible under Workers’ Compensation Law § 120. Our *144holding is limited to that section; we by no means suggest that predecision interest should be recoverable on workers’ compensation awards generally. Despite the name of the Workers’ Compensation Law, most of its provisions are designed not to make workers whole for the losses they may have suffered, but to provide for each injury a specified “money allowance” (Workers’ Compensation Law § 2 [6]) that bears no necessary relationship to full compensation. Interest on ordinary workers’ compensation awards is governed by statutes that specifically address the question, and provide for postdecision interest only (Workers’ Compensation Law § 20 [1]; § 24).

The dissent contends that section 20 (1) also governs the availability of interest on awards under section 120 (dissenting op at 145, 146, 148). A reading of section 20 (1) will show, however, that this interpretation is untenable. Section 20 (1), derived from a section of the original Workmen’s Compensation Law enacted in 1913 and amended to include the interest provision in 1925, is explicitly and solely concerned with claims based on a worker’s death or disability. It sets out a procedure for the determination of such claims, beginning with presentation of the claim “[a]t any time after the expiration of the first seven days of disability ... or at any time after the employee’s death.” It makes no reference to claims based on retaliatory discharge or other forms of discrimination. There is simply no way to apply section 20 (1) to claims under section 120, an antidiscrimination statute passed in 1973.

The dissent also suggests that the definition of “compensation” in Workers’ Compensation Law § 2 (6) — “the money allowance payable to an employee or to his dependents as provided for in this chapter” — is applicable to the use of “compensation” in section 120 (dissenting op at 148-149). This suggestion, like the dissent’s interpretation of section 20 (1), cannot be right. If the statutory definition of “compensation” is read into section 120, the statute does not make sense.

Nor does the dissent’s analysis of the legislative history of section 120 persuade us that the section was not designed to make workers whole. Section 120 provides, with seeming redundancy, that a victim of discrimination shall be “compensated . . . for any loss of compensation.” The dissent is no doubt right that the noun, “compensation,” introduced into the statute by a 1987 amendment, was intended as a broader counterpart to the former term, “wages” (dissenting op at 146-148). But the dissent offers no reason to think that the verb, “shall be *145compensated,” which was contained in the 1973 version of section 120, means anything but what it says. The combination of the noun and the verb, and the language in the statute authorizing equitable relief, show an intention to make victims whole. Nothing in the legislative history cited by the dissent contradicts that intention.

Finally, we reject claimant’s argument that he is entitled to a supplemental attorneys’ fee. The Board had discretion to require, as it did, that any request for a fee — even a prospective request, for work to be performed after the damages hearing — be first presented to the Workers’ Compensation Law Judge.

Accordingly, the order of the Appellate Division should be modified to provide that the Workers’ Compensation Law Judge’s award of $35,469 in interest is reinstated, and as so modified affirmed, with costs to claimant.