Matter of Fernandez v. Royal Coach Lines, Inc.

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 19, 2017 523446
________________________________

In the Matter of the Claim of
JULIO FERNANDEZ,
Claimant,
v MEMORANDUM AND ORDER

ROYAL COACH LINES, INC., et al.,
Respondents.

WORKERS' COMPENSATION BOARD,
Respondent.

JOSEPH A. ROMANO,
Appellant.
________________________________

Calendar Date: December 13, 2016

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

__________

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

Vecchione, Vecchione, Connors & Cano, LLP, Garden City
(Brian Anson of counsel), for Royal Coach Lines, Inc. and
another, respondents.

__________

Lynch, J.

Appeal from a decision of the Workers' Compensation Board,
filed January 25, 2016, which, among other things, determined the
amount of counsel fees due to claimant's counsel.

Claimant suffered work-related injuries to his neck, back,
left foot and left knee and he was awarded workers' compensation
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benefits. A Workers' Compensation Law Judge subsequently found
claimant to be permanently totally disabled and, among other
things, awarded claimant's counsel $2,800 in counsel fees. Upon
appeal, the Workers' Compensation Board rescinded the finding of
a permanent total disability, finding, instead, a permanent
partial disability, and directed further development of the
record regarding claimant's loss of wage-earning capacity. The
Board also reduced the award of counsel fees to $450, finding
that counsel's application for fees did not comply with 12 NYCRR
300.17 (d). Claimant's counsel now appeals, challenging the
reduction in counsel fees.

Under Workers' Compensation Law § 24, the Board has broad
discretion in approving an award of counsel fees (see Matter of
Kennedy v New York City Dept. of Corr., 140 AD3d 1572, 1574
[2016]). Pursuant to 12 NYCRR 300.17 (d) (1), as relevant here,
an attorney "shall file an application upon a form OC-400.1 in
each instance where a fee is requested pursuant to [Workers'
Compensation Law § 24]." In approving counsel fee requests in
matters where the claimant was awarded benefits, the Board "shall
approve a fee in an amount commensurate with the services
rendered and having due regard for the financial status of the
claimant and whether the attorney . . . engaged in dilatory
tactics or failed to comply in a timely manner with [B]oard
rules. In no case shall the fee be based solely on the amount of
the award" (12 NYCRR 300.17 [f]).

Here, the Board found counsel's OC-400.1 fee application
deficient for failing to indicate the date each service was
performed and the specific amount of time for each service.1
Instead, counsel listed four categories of service with a total
time for each category, identifying only the starting date for

1
To the extent that we previously held in Matter of Pavone
v Ambassador Transp., Inc. (26 AD3d 645, 646-647 [2006]) that
there is no requirement that counsel provide the Board with the
time spent providing his or her services pursuant to 12 NYCRR
300.17 (f), that holding should no longer be followed (see Matter
of Tenecela v VRAPO Construction et al., ___ AD3d ___, ___ n
[decided herewith]).
 -3- 523446

the initial work. The regulation mandates that the form "be
accurately completed" (12 NYCRR 300.17 [d] [1]). Notably, the
record confirms that counsel was familiar with a bulletin,
Subject Number 046-548, issued by the Board on May 28, 2013,
explaining that "[t]he form must be filled out in its entirety,
including the section for the date, description, and amount of
time spent on each service." The bulletin further cautions that
no fee will be approved unless "completed in its entirety" (see
12 NYCRR 300.17 [h]). A requirement for such specificity is
consonant with the Board's obligation to "approve a fee in an
amount commensurate with the services rendered" (12 NYCRR 300.17
[f]). Given this standard, the Board did not abuse its
discretion in deeming counsel's application deficient and
reducing the award to $450, the maximum allowed absent the
required form (see 12 NYCRR 300.17 [d] [1]; Matter of Kennedy v
New York City Dept. of Corr., 140 AD3d at 1574). This is all the
more so given that counsel failed to disclose that he had already
been awarded $900 in fees.

McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger
Clerk of the Court