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Workers' Compensation Board

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Case # 89612335
Matter of Erie County Correctional Facility

By Chairman Robert E. Beloten

Full Board Memorandum of Decision

* This decision also pertains to the following case(s): 8970 4574

The Full Board, at its meeting held on July 20, 2010, on its own motion pursuant to Workers' Compensation Law (WCL) § 150(b), considered the Administrative Decision filed June 23, 2010, in the above captioned claim. The Full Board adopts the following as the decision of the Board.


Whether the self-insured employer's new policy of limiting distribution of compensation checks to specific hours on two days per week and requiring claimants to pick them up at the place of employment violates WCL § 25(1)(a).

The Board filed an Administrative Decision on June 23, 2010, in which it found that the "Self Insured employer is prohibited from requiring the claimant or their [sic] representative from appearing in person to pick up their [sic] indemnity check."


Claimant, a corrections officer for the Erie County Correctional Facility, has had two work related accidents: one on July 17, 1996 (WCB # 8961 2335), and one on February 23, 1997 (WCB # 8970 4574).

As to her first accident, claimant was injured when the chair on which she was sitting rolled out from under her. Her claim was established for injuries to the head, right shoulder, low back, and both knees. The AWW was set at $793.70 per week.

As to her second accident, claimant was pushed while trying to break up a fight between inmates, receiving injuries to her neck, upper and lower back. Her claim was established for those injuries, and her AWW was set at $774.97.

By stipulation, claimant was classified as having a permanent partial disability and awarded continuing payments of $290.62 per week, apportioned 40% to the 1996 accident and 60% to her 1997 injuries (decision filed November 20, 2000). She has been awarded various weekly rates since the classification award. On June 10, 2008, her weekly rate changed to $387.48 with the same apportionment (decision filed October 22, 2008).

Two years later, on June 18, 2010, claimant's counsel filed a request for further action (RFA-1) in which he raised the issue of the method of payment by the County of Erie. He attached a letter to the claimant from the Chief of Administrative Services for the sheriff of Erie County which advised the following:

  • "Please be advised that as of July 8, 2010, you will no longer receive your bi-weekly indemnity payment by mail. After such date, you will be required to personally pick up your bi-weekly payments at [sic] on the First Floor of 10 Delaware Avenue, Buffalo, New York, on Thursdays between the hours of 1:00 PM and 4:00 PM or on Fridays, between the hours of 9:00 AM and 12:00 PM. Payments can be picked up beginning on July 8, 2010 and on a bi-weekly basis thereafter.

    This new requirement is due to a change in County policy such policy is attached hereto for your reference. Thank you."

The attached two-page policy specified in part:

  • "All employees (claimants) who receive bi-weekly indemnity payments from the County's third-party administrator (FCS) will no longer receive such payments via US Mail. Claimants must personally pick up their bi-weekly payments pursuant to County Department guidelines as described below."

The policy continued:

  • "Each county department shall designate a location where claimants will pick up their injury compensation payments. Each department head shall designate a time period on Thursday and Friday during which they will be available to distribute checks.
    • Schedule A – Thursday 9-12 and Friday 1-4
    • Schedule B – Thursday 1-4 and Friday 9-12

    The department will be responsible for notifying all claimants of the location and time window for pick up. Current claimants, as of the effective date of this policy, will be notified of the location and time window in writing. All new claimants will be notified of the location and time when they receive notice of their eligibility for benefits. All claimants must be notified, in writing, with 30 days notice of any changes to the location or time schedule."

The policy further provided that:

  • "Each claimant is responsible for personally picking up their [sic] payment in the location and time window designated by their [sic] department. Claimants may not send someone else to pick up their check [sic]. Claimants must present photo identification and sign to indicate receipt of their check."

The policy continues that:

  • "In the event that a claimant fails to appear during the scheduled time to pick up his/her payment, such payment will be held until the next available pick up date. Payments will not be mailed to claimants."

The policy provides that a claimant may request a waiver for a claimant's designee to pick up the payment which "may be granted under limited circumstances at the sole discretion of the Erie County Division of Risk Management."

Upon receipt of the request for further action, the Board filed an Administrative Decision on June 23, 2010, in which it found that the "Self Insured employer is prohibited from requiring the claimant or their [sic] representative from appearing in person to pick up their [sic] indemnity check."

No application for review has been filed to date; however, the thirty day time period in which to file an application for review has not expired.


Authority of the Board for review on its own motion

WCL § 150(b) provides in part:

  • "The decision of a referee on such a claim shall be deemed the decision of the board from the date of the filing thereof in the office of the secretary of the board unless the board, on its own motion or on application duly made to it, modify or rescind such decision" (emphasis supplied).

Similar to WCL § 150(b), WCL § 123 also extends to the Board continuing jurisdiction to make modifications with respect to further findings and decisions as may be just (Matter of Sicurella v Fedders Quigan Corp., 35 AD2d 1036 [1970]).

Erie County is a large municipal self-insured employer. Its new policy of limiting the distribution of compensation checks to specific hours on two days per week and requiring employees to pick them up at the place of employment presents an issue of first impression for the Board. As the policy affects all claimants employed by Erie County, injured both before and after the policy became effective, it becomes an important issue and one the Full Board should accept for review on its own motion.

Payment of Lost Wages under the WCL

The NY State Constitution § 18 grants the legislature the exclusive power to "enact laws … for the payment … of compensation for injuries to employees …." The purpose of the Workers' Compensation Law (WCL) subsequently enacted by the legislature is "'to secure to dependents the speedy, certain and adequate provision for their support.' (Travelers Ins. Co. v Brass Goods Mfg. Co., 239 N.Y. 273, 276, supra.) It afford[s] a means of protecting workmen and their dependents with an effective relief from want…. (Matter of Post v Burger & Gohlke, 216 N.Y. 544, 553)." Skakandy v Wreckers & Excavators, Inc., 274 AD 220 [1948], affd 298 NY 888 [1949]).

To this end, the WCL sets the basis of the payment by providing weekly wages as the foundation for lost wage computation (WCL § 14). WCL § 15 provides the schedule amounts payable for various degrees of disability, and WCL § 25 defines the timing of those payments (WCL § 25). Additionally, WCL § 25[1][a] gives the manner by which compensation is paid:

  • "periodically and promptly in like manner as wages, and as it accrues, and directly to the person entitled thereto without waiting for an award by the board …."

As to the method of payment, to meet the stringent time requirements for the payment of compensation awards, the industry standard is to pay by check delivered through the US mail (cf. Malone v Bob Bernhardt Paving, 2 NY3d 756 [2004]) . It has always been the custom and practice for workers' compensation benefits to be paid by mail. The only other payment option authorized by the WCL is direct deposit into a bank account in the name of the injured worker provided the injured worker makes a written request for such deposit and the employer has elected to permit such deposits (WCL § 25[9]). If there is a disagreement about the method and manner of payment, resolution is within the exclusive jurisdiction of the Board (see Collier v Simmonds Precision, Inc., 122 AD2d 399 [1986]).

There are four requirements articulated in WCL § 25(1)(a) regarding payments to injured workers. They must be periodic, prompt, in like manner as wages, and direct. The intent of WCL § 25 from its inception was the convenience of claimants and the prevention of them becoming "charges upon public charity" (Matter of Lauritzen v Terry & Tench Company, Inc., 193 AD 809 [1920]). The county's new policy of limiting the distribution of checks to specific hours on two days per week and requiring employees to pick them up at the employer's location violates all four of the statutory requirements.

First, while limiting the pick-up of payments to specific times on two days per week may meet the periodic requirement for the employer based upon its convenience, such availability does not insure that it will be convenient, or even possible, for the claimant to pick up the check at that time. If a pick-up time is missed by the claimant, the policy provides, the payment will not be mailed but will be held until the next available pick up date. Such a policy then prevents, not fosters, the periodic delivery of payments directly to the claimant.

Second, the policy does not make available payments promptly because it limits their availability to certain times of day on certain days of the week. A prompt payment would mean that it is immediately accessible to the claimant for his/her use. Waiting for the designated day and time of pick-up delays accessibility to the money.

Third, the policy does not allow for payment in like manner as wages. Generally, non-injured workers in a municipality as large as Erie County are offered a variety of ways to receive their paychecks. Direct deposit is often a choice along with mailing to the worker's home or picking up the check directly. Limiting an injured worker to only one method of payment does not make available the other choices allowed to non-injured workers, is then not in like manner of wages, and does not expedite the award as the language intended (cf. Matter of LaCroix v Syracuse Executive Air Service Inc., 8 NY3d 348 [2007]).

Fourth, the policy does not allow direct payment to the claimant in that it forecloses the claimant's choice of any direct deposit pursuant to WCL § 25(9). The policy is clear that all new claimants receiving benefits will be "notified of the location and time when they receive notice of their eligibility for benefits." Therefore, direct deposit is not available to them. On the other hand, a claimant who now receives checks by mail will no longer receive them by that method, but "must personally pick up their bi-weekly payments." The policy, then, is ambiguous as to whether a claimant now receiving direct deposit as the method of payment will continue to be allowed to receive it in that manner.

Finally, the policy violates the spirit and intent of the WCL. It places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace. To assert post-injury control over the employee by requiring an injured worker to pick up the compensation check at the place of employment overly burdens an injured worker by adding unnecessary traveling costs and potentially places an injured worker at risk of further injury. The compensation law was enacted to assist claimants at a time of hardship, not add to their burdens unnecessarily. In fact, the compensation law contains provisions alluding to the convenience of the claimant (WCL § 137[6], 12 NYCRR 300.2[d][6] [ IME's must be performed during regular business hours except "with the consent and for the convenience of the claimant"]; WCL § 13-a[4][c], 12 NYCRR 300.2[d][7] [unauthorized but qualified provider may perform IME if there presents an "unreasonable burden" for the claimant]).

To insure that compensation payments are speedy, certain, and easily accessible to the injured worker, the Board finds that compensation checks should be mailed to the claimant's place of residence or, whenever appropriate, directly deposited into claimant's bank account. The policy adopted by the self-insured County requiring claimants to pick up their compensation checks at a time convenient for the employer (limited only to designated times on either a Thursday or Friday) is not only in violation of WCL § 25(1)(a), but is also inconsistent with the Court's practice of construing WCL § 25 "to advance its economic and humanitarian purposes" (Matter of DeMayo v Rensselaer Polytech Institute, 74 NY2d 459 [1989]).

If the employer seeks information from the claimant about injury status, work limitations, or a return to work date during a period when he/she is not working, communications can be arranged without the necessity of an appearance at the employer's place of business. On the other hand, if the employer wants to offer a light duty position, such communication would best be accomplished in writing to the claimant with a copy to claimant's treating provider and legal counsel, if any (see Matter of Soop v Borg Warner Automotive, 21 AD3d 668 [2005]). Neither of these initiatives, however, should be undertaken in the context of making indemnity payments.


Accordingly, the Administrative Decision filed June 23, 2010, is rescinded. The Full Board finds that the self-insured employer's policy of making claimant pick up her compensation checks at the place of employment violates WCL § 25(1)(a) . The self-insured employer is hereby directed to make all payment of lost wage benefits payable under the Workers' Compensation Law by either mailing a check to the claimant's place of residence, or by direct deposit.

The above reflects the opinion of the Board by a vote of 12-0.