NY Law Firm Requests $52K in Fees, Gets $1K For Failure to Submit Proper Form

A New York appellate court held the state's Workers' Compensation Board did not abuse its discretion in awarding counsel fees of $1,000 to the law firm representing an injured worker in spite of the firm's request, contained in a memorandum of law filed with the Board, that sought counsel fees in the amount of $52,000 [Matter of Dzielski v New York State Dept. of Corr. & Community Supervision, 2020 N.Y. App. Div. LEXIS 5669 (Oct. 8, 2020)]. The appellate court noted that the firm had failed to submit an appropriately completed OC-400.1 fee application form.

Background

Claimant, a corrections officer, established work-related injuries to his right shoulder and left wrist, as well as a consequential right carpel tunnel syndrome injury. Claimant's physician and the independent medical examiner for the employer's workers' compensation carrier offered differing opinions as to claimant's schedule loss of use (SLU) of the injured areas. Claimant and the carrier were unable to reach a settlement and, therefore, were directed to submit medical deposition transcripts and memoranda.

No OC-400.1 Fee Application Form

In the memorandum of law submitted on behalf of claimant, the law firm representing claimant requested $52,000 in counsel fees. Thereafter, in a reserved decision, the WCLJ, primarily crediting the medical opinion submitted by the carrier, ruled that claimant sustained a 50% SLU of the right arm, a 20% SLU of his right hand, and a 20% SLU of the left hand. The WCLJ also found that the law firm's failure to submit an OC-400.1 fee application form—which the WCLJ noted should have been submitted at the time the memorandum was filed—was the equivalent of submitting a defective form. As such, the WCLJ awarded $1,000 in counsel fees pursuant to the maximum fee allowable by regulation without submission of a fee application. The Board affirmed the challenge to the SLU awards, as well as the amount of counsel fees awarded to the law firm. Claimant appealed, with the sole issue upon appeal challenging the propriety of the amount of counsel fees awarded.

Appellate Court Decision

The appellate court noted parenthetically that in as much as the appeal pertained only to the amount of counsel fees, the notice of appeal, which had been filed in the claimant's name, should have been filed on behalf of the law firm. The Court disregarded that issue, however. The Court stressed that where, as here, the request for counsel fees exceeded $1,000, counsel was required to submit an accurately completed form OC-400.1 fee application specifying the dates and description of the services rendered on behalf of the claimant, as well as the total hours expended. Given the failure to comply with the regulatory requirements regarding the filing of a fee application request, the Court did not find that the Board abused its discretion or acted in an arbitrary or capricious manner in awarding counsel fees of $1,000.