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THE WORKERS’ COMPENSATION BOARD IS NOT AUTHORIZED TO AWARD ATTORNEY’S FEES FOR CHARGES ASSESSED AGAINST AN EMPLOYER OR INSURANCE CARRIER FOR UNTIMELY COMPENSATION PAYMENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined that the Workers” Compensation Board (Board) did not have the authority to approve attorney’s fees for charges against an employer or insurance carrier under Workers’ Compensation Law (WCL) section 25 for untimely compensation payments. The Board may only approve legal fees in accord with its counsel fees schedule in WCL section 24 which does not include charges under WCL section 25:

Counsel argues that the Board has long recognized that legal fees may be payable from late payment penalties, and that WCL 24 (2) … does not expressly limit the Board’s authority to approve such fees. Counsel further asserts that a claimant’s late payment award under WCL 25 is “compensation” under the WCL and thus falls within the WCL 24 (2) fee schedule. Counsel adds that permitting legal fees based on these charges furthers the WCL’s legislative purpose of promoting access to justice for injured workers by incentivizing attorneys skilled in handling WCL cases to represent claimants.

The Board counters that the plain text of WCL 24 (2) limits legal fee awards to those enumerated in the statute’s fee schedule. The Board further argues that charges assessed for late payments are not compensation but a separate award for a claimant assessed against an employer or insurance carrier. Lastly, the Board maintains that the amount of legal fees generated from an award listed on the fee schedule and the certainty that an attorney will receive those fees are sufficient incentives for attorneys to represent claimants.

We conclude that the Board does not have authority to approve legal fees based on charges assessed pursuant to WCL 25 because the text of WCL 24 (2) establishes a mandatory fee schedule that does not provide for such fees. Our interpretation does not lead to an absurd result. Indeed, the legislative history makes no mention of legal fees based on charges imposed for violations of WCL 25, let alone reflect a legislative concern that attorneys would refuse workers’ compensation cases if such fees were unavailable. Matter of Gonzalez v Northeast Parent & Child Socy., 2026 NY Slip Op 01443, CtApp 3-17-26

 

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