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*This bulletin has been updated with the correct title of Subject Number 046-1572, Adoption of Amendment of Workers' Compensation Law (WCL) § 24 (Attorney's Fees).
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.
Subject Number 046-1572, Adoption of Amendment of Workers' Compensation Law (WCL) § 24 (Attorney's Fees) 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.
Detailed amendments to these sections are available in Subject Number 046-1572.
Form changes
There have been changes to the Section 23 Waiver Agreement, Claimant Release (Form C-32.1), Notice of Retainer and Substitution (Form OC-400), Application for a Fee by Claimant's Attorney or Licensed Representative (Form OC-400.1) and the RB-89 family of forms.
Detailed form changes are available in Subject Number 046-1572.
Payment history information
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]).” Within CIS and eCase, 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.
Screenshots and further details are available in Subject Number 046-1572.
More information
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.
More information can be found in Subject Number 046-1572, Adoption of Amendment of Workers' Compensation Law (WCL) § 24 (Attorney's Fees).
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