Board Bulletins and Subject Numbers

December 13, 2022

Introduction:

The amendment of Workers' Compensation Law (WCL) § 24, effective January 1, 2023, will significantly affect the way attorney's fees are awarded in workers' compensation proceedings.

This Subject Number addresses the statutory amendment, the resulting revisions made to the Board's regulations, the modification of Board forms, and the importance of payment history information in the Board's Claims Information System (CIS) and eCase.

Statutory changes:

• The addition of a specific requirement that a written fee application be filed on a form prescribed by the Board in all instances in which a fee is requested in excess of $1,000 (see WCL § 24[2]).
• For a written or oral fee application (more than $1,000 or $1,000 or less, respectively), the attorney is to set forth the calculation used to determine the fee and certify that the amount is in accordance with the provisions of WCL § 24(2).
• A description of the services rendered, and the time spent, will no longer be required in a written fee application (see WCL § 24[2]).
• The statute specifically provides that the Board shall approve a fee application in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the claimant's financial state (see WCL § 24[2]).
• Fee applications will be approved in accordance with the schedule that is set forth in WCL § 24(2)(a-f):
  • WCL § 24(2)(a) provides for a fee of 1/3 of one week's compensation for the continuation of a temporary total or temporary partial disability.
  • WCL § 24(2)(b) provides for a fee of 15% of any increase in the amount of any compensation awarded or paid for a previous period of temporary total or temporary partial disability.
  • WCL § 24(2)(c) provides for a 15% fee on the compensation due in excess of the employer or carrier's previous payments for Schedule Loss of Use or permanent facial disfigurement cases.
  • WCL § 24(2)(d) provides for a 15% fee on the compensation due in excess of the employer or carrier's previous payments for permanent total or permanent partial disabilities, plus a sum equivalent to 15 weeks of compensation at the rate fixed by the Board.
  • WCL § 24(2)(e) provides for a 15% fee on the compensation due in excess of the employer or carrier's previous payments for death benefits, plus a sum equivalent to 15 weeks of compensation at the rate fixed by the Board.
  • WCL § 24(2)(f) provides for a 15% fee for WCL § 32 Waiver Agreements, after excluding any benefits specifically allocated for future medical expenses.
• A new provision provides that the Board shall determine the amount of fees allocated to any prior, substituted-for attorney who submits a timely fee request out of the total fees awarded (see WCL § 24[3]).

Regulatory changes:

The Chair adopted the amendments to sections 300.17, 300.36, and 300.38 of Title 12 NYCRR to align the regulations with amendments to WCL § 24 that will take effect January 1, 2023.

The Notice of Proposed Rule Making was published in the October 5, 2022, edition of the State Register. A Notice of Adoption will be published in the December 28, 2022, edition of the State Register, and the regulation amendments will also take effect on January 1, 2023.

Board Rule 300.17

• 300.17(c) was removed. It permitted the Board to not award a requested fee if the attorney failed to serve and file a required notice of retainer or notice of substitution or obtain approval to withdraw consistent with 300.17(b)(2).
• 300.17(d)(1) was amended to remove the requirement that an attorney specify the services rendered to the claimant, and the time spent on a fee application. Instead, 300.17(c) and (d) now include a requirement that any fee application must set forth only the calculation used to determine the fee and the attorney must certify that the amount requested is consistent with the appropriate percentage set forth in WCL § 24(2)(a-f).
• 300.17(d)(2) was amended to remove the requirement that all fees in excess of $1,000 be awarded at a hearing with the claimant present, or in the absence of such an appearance, that the claimant be provided with an opportunity to review the fee application, explain that they understand it, and have no objection to the fee requested.
• 300.17(d)(3) was amended to remove the requirement that an absent claimant be informed 10 days prior to the awarding of a fee in excess of $1,000 and indicate that they approve and have no objection.
• 300.17(f) (now [e]) was amended to specifically indicate that a fee will now be approved based not only on the services rendered by the attorney, but also the amount of the compensation awarded.
• 300.17(f) (now [e]) was amended to remove the Board's discretion to reduce or deny a fee requested by an attorney based on the attorney engaging in dilatory tactics, failing to timely comply with Board rules, or based on their unbecoming or unethical conduct.
• 300.17(f) (now [e]) was amended to include a requirement that the Board apply the schedule set forth in WCL § 24(2)(a-f) when awarding an attorney's fee.
• 300.17(g) (now [f]) was amended to specifically provide that the Board will determine the amount of fees allocated to a substituted-for attorney out of the total attorney's fee awarded. A substituted-for attorney and the attorney currently retained by the claimant will each be given the opportunity to present their respective positions in writing to the Board as to the allocation of the fee.
• 300.17(h) was removed. It permitted the Board to award no fee if the claimant's attorney failed to comply with the requirements of this regulation.

12 NYCRR 300.36

Board Rule 300.36(j), relating to the approval of WCL § 32 waiver agreements, was amended to require that all fees be awarded consistent with WCL § 24(2)(f), and to remove the provision indicating that an agreement may provide for "reasonable" fees.

12 NYCRR 300.38

Board Rule 300.38(f), relating to the controverted claims process, was amended to remove paragraph (5), which allowed for a mandatory, substantial fee reduction for: (i) failure to timely serve on all parties and file with the Board the claimant's pre-hearing conference statement; (ii) filing a materially incomplete pre-hearing conference statement for claimant; (iii) failure to list a witness, who subsequently testifies, on claimant's pre-hearing conference statement; or (iv) failure to include with claimant's pre-hearing conference statement a copy of any document not in the electronic case file, which the claimant had in their possession or could reasonably have obtained, if such document is used by claimant's legal representative in seeking to establish the claim.

Form changes:

Section 32 Waiver Agreement: Claimant Release (Form C-32.1) was modified to remove Question (9), which asked: "Do you agree with the amount of the fee requested by your attorney or licensed representative? The Board may approve or modify the amount of the requested fee. (If no, explain below.)"

Notice of Retainer and Substitution (Form OC-400) was modified to include the up-to-date version of Board Rule 300.17.

Application for a Fee by Claimant's Attorney or Licensed Representative (Form OC-400.1) was streamlined, requiring only that the following be included:

• The fee amount requested.
• The subparagraph of WCL § 24(2)(a-f) that the request is based upon.
• The calculation of the requested fee, with a box for attorneys to demonstrate how they arrived at the requested fee. There is a link in the form to a desk aid that contains examples that attorneys can utilize when completing this portion of the OC-400.1 form.
• A section devoted to ensuring that the Board is made aware if an attorney was previously substituted for, and if so, if the substituted-for attorney has a fee request.
• A section for an attorney certification that is consistent with the requirement set forth in WCL § 24(2) and Board Rule 300.17(c)(1) and (d).

The RB-89 family of forms were modified to remove Question (17), which asked: "Will you be requesting an increase in attorney's fees?" on the Application for Board Review (Form RB-89), Rebuttal of Application for Board Review (Form RB-89.1), Application for Reconsideration/Full Board Review (Form RB-89.2), and Rebuttal of Application for Reconsideration/Full Board Review (Form RB-89.3).

Grace period for new forms:

Form ID	Last Day for Old Versions	First Day for New Versions
OC-400	12/31/2022	1/2/2023
OC-400.1	12/31/2022	1/2/2023
C-32.1	12/31/2022	1/2/2023
RB-89	12/31/2022	1/2/2023
RB-89.1	12/31/2022	1/2/2023
RB-89.2	12/31/2022	1/2/2023
RB-89.3	12/31/2022	1/2/2023

There will be a 60-day grace period for the RB-89 family of forms. When this grace period is over, the Board will continue to scan these forms, but begin to exercise its discretion to deny review of these applications and rebuttals.

Payment history information:

CIS and eCase both have a FROI/SROI tab that displays information transmitted electronically by claim administrators on the First Report of Injury (FROI) and Subsequent Report of Injury (SROI). The Cumulative Benefits, OBTs (Other Benefit Types), and Recoveries tab within the FROI/SROI tab is especially helpful in that it provides claim payment history information. Specifically, the cumulative benefits paid by the claim administrator are listed by benefit type and total amount paid to date.

The Board Awards tab in eCase also displays awards that the Judge has made.

Beginning in 2023, the Board will be required to consider "…the amount of the compensation awarded, having due regard for the financial state of the claimant… (see WCL § 24[2])." The information in both the Cumulative Benefits, OBTs, and Recoveries tab and the Board Awards tab will assist Judges in determining compensation previously awarded to the claimant and the propriety of the requested attorney's fee.

The failure to timely file a required FROI or SROI necessitates the imposition of a penalty under WCL § 25(3)(e) in the amount of $50.

If the failure of a payer to timely file a FROI or SROI results in the institution or continuation of proceedings without reasonable grounds, a penalty under WCL § 114-a(3)(i) shall be imposed. Instructions for using the FROI/SROI tab in eCase can be found on the FROI/SROI Tab page of the Board's website.

Conclusion:

Any questions relating to the implementation of the amendments to WCL § 24 should be addressed to the Board's Office of General Counsel at (518) 486-9564, or officeofgeneralcounsel@wcb.ny.gov.