Greenberg v. New York City Transit Authority

Read, J.

(dissenting). Section 20 of the Workers’ Compensation Law specifies that “[e]xcept as provided in section twenty-seven of this article, all awards of the board shall draw simple interest from thirty days after the making thereof’ (Workers’ Compensation Law § 20 [1]). Thus has the Legislature plainly negated the predecision interest for which the majority principally finds warrant in the Human Rights Law and our decision in Matter of Aurecchione v New York State Div. of Human Rights (98 NY2d 21 [2002]). Accordingly, I respectfully dissent. I would affirm the decisions of the Workers’ Compensation Board and the Appellate Division.

Hailed as a “notable measure . . . which will put a great burden on the employer and will launch an experiment in state insurance” (Talley, New York Workmen’s Compensation Act Very Radical, New York Times, Dec. 28, 1913, section 5, at 10), the Workers’ Compensation Law took effect on January 1, 1914. In the intervening years, this important statute has been the object of constant legislative attention and fine-tuning. Indeed, between 1914 and 1961, when former Governor Nelson A. Rockefeller appointed a blue-ribbon committee to review the status of workers’ compensation in New York, the Legislature amended the law a remarkable 560 times (Governor’s Workmen’s Compensation Review Committee, Review of Workmen’s Compensation in New York State, at 19 [Dec. 1962]). Legislative interest has hardly waned in the 45 years since 1961 (see e.g. Omnibus Workers’ Compensation Reform Act of 1996 [L 1996, *146ch 635]). The result is a complex, integrated and unusually prescriptive statute, which we have historically interpreted by looking solely at its particular language, context and legislative history, even though we have surely sometimes disagreed about the answer yielded by this analysis. In this case, the language, context and legislative history of sections 20 and 120 of the Workers’ Compensation Law support the conclusion reached by the Workers’ Compensation Board and the Appellate Division; namely, that predecision interest is not available under section 120.

Originally, the only provision in the Workers’ Compensation Law addressing interest was section 24, which specified that an award subsequently affirmed by the Appellate Division was payable with interest from the date made (L 1917, ch 705). In 1925, the Legislature established a special committee to investigate alleged delays in the settlement and payment of compensation and death benefits to employees and their dependants under the Workers’ Compensation Law. The committee found that some delays were attributable to the withdrawal of appeals before perfection:

“While there is no actual proof to the effect that appeals have been taken to the courts merely for the purpose of delaying compensation[,] the testimony shows that at least seventy-five percent of the appeals are withdrawn. If an appeal is sustained by the court[,] the award draws interest from the date of the award by the board.[1] If an appeal is withdrawn and compensation paid, no interest is added” (1925 NY Legis Doc No. 80, at 8).

To reduce any incentive for unnecessary appeals and thus cut down on delays from this cause, the Committee recommended amending the Workers’ Compensation Law “to provide that awards for compensation should bear interest beginning thirty days after the date of the award. To compute interest beginning at an earlier period in all cases would be impractical” (id.). The Legislature enacted this “simple addition” to section 20 in 1925 (see Comment from NY St Fedn of Labor, Bill Jacket, L 1925, ch *147660). In 1939, the Legislature amended section 20 to except awards under section 27 from the direction to pay interest beginning 30 days after the date of the award by the board (see L 1939, ch 937, § 2).2 This is the only exception to the 30-day rule enacted by the Legislature since 1925.

In 1973, the Legislature added section 120 to the Workers’ Compensation Law. Modeled after an amendment made by Congress to the Longshore and Harbor Workers’ Compensation Act the previous year (see 33 USC § 948a, as added Oct. 27, 1972 by Pub L 92-576, § 19), section 120 made it unlawful for an employer “to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify” (L 1973, ch 235, § 1) in a workers’ compensation proceeding. The wronged employee’s remedies were limited to restoration to employment and compensation for lost wages. The purpose of this legislation was to “insure[ ] that a claimant can exercise his rights . . . without fear that doing so may endanger the continuity of employment” (Mem of Indus Commr, Bill Jacket, L 1973, ch 235).3

Recognizing that section 120 was, in some ways, “not now carefully drawn,” in 1987 the Workers’ Compensation Board recommended amending it (see Mem of State Workers’ Compensation Board, 1987 McKinney’s Session Laws of NY, at 2459). The Legislature subsequently struck the language in section 120 limiting a wronged employee’s remedies to reinstatement and compensation for lost wages, and replaced it with the instruction, which continues to be the law, that:

“any employee [discriminated against in violation of section 120] shall be restored to employment or otherwise restored to the position or privileges he or she would have had but for the discrimination and *148shall be compensated by his or her employer for any loss of compensation arising out of such discrimination.”

This language was drafted by the Workers’ Compensation Board. The Board explained the revision as necessary because

“[w]hile [section 120] prohibits discrimination other than discharge, it does not provide remedies other than reinstatement and back wages. Thus, if an employee were demoted or transferred, no equitable relief would be possible. If the employee were terminated and lost fringe benefits (e.g. medical insurance) as well as back pay, no compensation for lost benefits would be possible. This legislation would allow the Workers’ Compensation Board to restore the employee discriminated against to employment, and/or to restore the employee to the position or privileges he or she would have had but for the discrimination” (see July 21, 1987 Letter to Governor’s Counsel from General Counsel of Workers’ Compensation Bd, Bill Jacket, L 1987, ch 436).

In sum, section 120 is not a stand-alone statute. It is part of the Workers’ Compensation Law, which in section 20 makes interest payable 30 days after an award by the Board, not from some earlier point in time. If the Legislature had wanted to except section 120 from the generally applicable rule in section 20, it would have done so explicitly as it did in the case of section 27.

Additionally, context and legislative history contradict any suggestion that the Legislature intended section 120 to make predecision interest available to an aggrieved employee. The majority acknowledges that the Workers’ Compensation Law was never designed to make workers whole for losses suffered (majority op at 144). Indeed, “compensation” is defined specifically and narrowly for purposes of the statute generally (see Workers’ Compensation Law § 2 [6]). The majority ignores this, although we have, in the past, interpreted a term in the Workers’ Compensation Law with reference to its meaning in unrelated provisions elsewhere in the statute (see Rubeis v Aqua Club, Inc., 3 NY3d 408 [2004] [whether a brain injury results in “permanent total disability” under Workers’ Compensation Law § 11 must be considered within larger context of Workers’ Compensation Law where customary definition of “disability” generally refers to inability to work]). Because “compensation” *149does not include predecision interest within the larger context of the Workers’ Compensation Law, the natural inference is that, if the Legislature had intended section 120 to make this uncustomary element of compensation available, it would have said so directly. The Legislature that enacted and amended section 120 could not have anticipated that the courts would imply a right to predecision interest solely from its use of the words “compensation” and “compensated,” and by analogy to the Human Rights Law and Aurecchione, a case decided only a few years ago.

Indeed, section 120’s legislative history strongly supports the Workers’ Compensation Board’s position on this appeal. Notably, the critical language directing that an aggrieved employee “shall be restored to employment or otherwise restored to the position or privileges he or she would have had . . . and shall be compensated . . . for any loss of compensation” was drafted by the Board, and enacted by the Legislature without revision (compare 1987 NY Senate-Assembly Bill S 2702, A 7313 with 1987 NY Senate-Assembly Bill S 2702-A, A 7313-A). The Board explained this wording as intended to fulfill two specific purposes. The first was to restore positions or privileges denied to employees who were discriminated against in some way in their employment, but who did not lose their jobs. For these employees, the remedies in the statute as originally enacted— reinstatement and back pay — were pointless. Second, the Board wanted to make sure that employees who were, in fact, terminated were compensated for any lost benefits in addition to lost wages. These purposes dispel any notion that “compensated” and “compensation” implicitly encompass predecision interest (see Letter to Governor’s Counsel from General Counsel of Workers’ Compensation Bd, supra).

Finally, as the Appellate Division noted, it is highly significant that the Workers’ Compensation Board has consistently taken the position that predecision interest is not an element of the compensation available under section 120 (see 16 AD3d 764, 764-765 [3d Dept 2005], citing Matter of Mount Vernon Hosp., 95 NY WCLR 1197 [1995]). While we usually owe no deference to an administrative agency in matters of statutory interpretation, in this instance the agency actually drafted the relevant statutory language and explained what it meant to accomplish by its choice of words, which the Legislature then enacted without revision.

The majority nonetheless holds that “predecision interest awards are permissible under Workers’ Compensation Law *150§ 120” (majority op at 143) principally by analogy to the Human Rights Law and our decision in Aurecchione. In Aurecchione, we decided that the State Division of Human Rights has discretion to award predetermination interest on back pay awards for employment discrimination by a private employer even though the statute makes no specific reference to this remedy. Our decision was based on two grounds, both absent here. First, we observed that “[t]he remedial nature of the [Human Rights Law] evinces a legislative intent to compensate fully victims of employment discrimination” (Aurecchione, 98 NY2d at 25), and that, concomitantly, Executive Law § 300 “explicitly mandated” a “liberal reading of the statute ... to effectuate [its] intent” (id. at 26). By contrast, the Legislature has expressed no similar intention to make workers whole under the Workers’ Compensation Law generally or section 120 in particular; the Legislature has by no means and nowhere enjoined the courts to give a “liberal reading” to the detailed and often heavily negotiated provisions of the Workers’ Compensation Law.

Second, we noted the similarities between the Human Rights Law and its federal counterpart, title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.), which the United States Supreme Court has interpreted to permit predetermination interest despite the absence of any reference to this relief in the statutory text, and our policy “to resolve federal and state employment discrimination claims consistently” (Aurecchione, 98 NY2d at 25; see also McGrath v Toys “R” Us, Inc., 3 NY3d 421, 429 [2004] [“Where our state and local civil rights statutes are substantively and textually similar to their federal counterparts, our Court has generally interpreted them consistently with federal precedent”], citing Aurecchione; Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]; Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326 [2003]; and Ferrante v American Lung Assn., 90 NY2d 623 [1997]). The Workers’ Compensation Law is, of course, not a civil rights statute, and has no federal analogue.

Two final points merit mentioning. Section 120 states that an employee “shall be compensated . . . for any loss of compensation” (emphasis added). Consequently, if the words “compensated” and “compensation” implicitly comprehend predecision interest, the Board presumably has no discretion to deny an aggrieved employee this relief. The majority fudges this issue, creating unnecessary uncertainty. The majority never explains whether an award of predecision interest is mandatory or *151whether the Board simply abused its discretion by not awarding predecision interest in this instance.

Finally, the majority remarks upon the “inexplicably long delay” in awarding back pay in this case (see majority op at 141). There is no doubt that the seven-year time lag between claimant’s reinstatement and the Board’s decision with respect to his back pay award seems egregious. The record does not disclose what caused this hiatus, although there is surely no reason to lay the blame on claimant. We also have no way to know whether the delay here was atypical or commonplace. In any event, that this claimant may have been treated unfairly does not give us license to “rewrite the statute to achieve more ‘fairness’ than the Legislature chose to enact” (Matter of Bello v Roswell Park Cancer Inst., 5 NY3d 170, 173 [2005]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur with Judge R.S. Smith; Judge Read dissents in a separate opinion in which Judge Graffeo concurs.

Order modified, etc.

. At that time, the “board” was the Industrial Board of the New York State Department of Labor. The Workers’ Compensation Board took over the administration of the Workers’ Compensation Law from the Industrial Board in 1945 (see Workers’ Compensation Law § 154; Minkowitz, Practice Commentaries, McKinneys Cons Laws of NY, Book 64, Workers’ Compensation Law § 154, at 397).

. Section 27 of the Workers’ Compensation Law allows the Board to permit or require an employer or its carrier to pay the present value of certain kinds of awards into an aggregate trust fund established by that provision. In 1939, the Legislature amended section 27 to specify when and how and at what rate interest was payable in the event of a review or appeal of any such award the value of which had not been paid into the fund (see L 1939, ch 937, §1).

. Section 120 also authorized the Board to impose a penalty between $100 and $500 against an employer in violation of its provisions. The employer is individually hable to pay the penalty.