Matter of the Claim of Lynn Pandolfi v Plainedge Union Free School District et al.
Attorneys and Parties
Brief Summary
Whether a prior attorney may receive workers' compensation counsel fees when relieved from representation and no new attorney is substituted, under Workers' Compensation Law § 24 (3) [addresses allocation of fees when a prior attorney has been substituted and ensures any fee to the prior attorney is paid out of the total fee awarded, protecting the claimant from an increased total].
The Workers' Compensation Board concluded counsel was not statutorily entitled to fees under Workers' Compensation Law § 24 (3).
The Board’s denial of counsel fees premised on Workers' Compensation Law § 24 (3) and the notion that fees are disfavored where the claimant proceeds without replacement counsel.
Section 24 (3) applies only when there has been a substitution of attorneys; it does not foreclose fees when counsel is relieved and no substitution occurs. In such cases, fees should be considered under Workers' Compensation Law § 24 (2) [fee must be commensurate with the services rendered and the amount of compensation awarded, with due regard for the claimant's financial state].
Background
Claimant was injured in October 2017 and sought workers' compensation benefits. She retained counsel in April 2018, and the claim was established in May 2018; awards were later held in abeyance in January 2019. From 2018 to 2022, claimant expressed dissatisfaction with counsel. In May 2022, counsel sought to be relieved. A Workers' Compensation Law Judge (WCLJ) initially held the request in abeyance pending claimant’s efforts to obtain new counsel, but the Workers' Compensation Board later relieved counsel in October 2022, finding a breakdown in communications. Counsel then applied for fees. Claimant proceeded pro se thereafter, and the WCLJ continued awards at a temporary partial disability rate but denied counsel’s fee request, citing a policy disfavoring fees when a claimant remains unrepresented. On administrative appeal, the Board held counsel was not entitled to fees under Workers' Compensation Law § 24 (3).
Lower Court Decision
The WCLJ denied the fee application, referencing a Board policy that disfavors fees when claimants proceed without replacement counsel. On appeal, the Workers' Compensation Board modified, denying fees on statutory grounds, ruling that Workers' Compensation Law § 24 (3) did not permit an award to prior counsel where no substituted attorney was retained.
Appellate Division Reversal
The Appellate Division reversed, holding that Workers' Compensation Law § 24 (3) governs only substituted-counsel scenarios and does not bar fees to a prior attorney when no substitution occurs. The court remitted for the Board to assess the fee application under Workers' Compensation Law § 24 (2) in an amount commensurate with services and the compensation awarded, with due regard for claimant’s financial state.
Legal Significance
Clarifies that prior counsel who is relieved without a substitution may still receive fees in workers' compensation cases; the Board must evaluate such requests under § 24 (2) criteria rather than denying them under § 24 (3) or general policy. It reinforces that statutory interpretation controls and that § 24 (3) protects claimants from increased total fees only in substitution situations.
When a workers' compensation attorney is relieved and no new counsel is substituted, the Board must consider a fee under § 24 (2); § 24 (3) does not bar such fees.