In the Matter of the Claim of DANIEL GUAMANTARIO TENECELA, Appellant,
VRAPO CONSTRUCTION et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent. JOSEPH A. ROMANO, Appellant.
Calendar Date: December 13, 2016
Office of Joseph A. Romano, New York City (Joseph A. Romano
of counsel), for appellants.
William O'Brien, State Insurance Fund, White Plains
(Rudolf Rosa Di Sant of counsel), for Vrapo Construction and
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
November 12, 2015, which ruled, among other things, that
claimant sustained a permanent partial disability and a 98%
loss of wage-earning capacity and awarded counsel fees.
2011, while employed as a carpenter, claimant fell off a roof
and sustained injuries that were established to his neck,
back, knees, head, nose, right shoulder and right wrist.
Claimant received ongoing treatment and was paid awards at a
temporary total disability rate. Following receipt of medical
reports and testimony on the degree of permanency, impairment
and loss of wage-earning capacity, the Workers'
Compensation Law Judge (hereinafter WCLJ) concluded that
claimant had a permanent partial disability and a loss of
wage-earning capacity of 98%. The WCLJ also awarded counsel
fees in the amount of $4, 000. The Workers' Compensation
Board upheld the determination with regard to claimant, but
sua sponte reduced the counsel fee award to $450 due to
deficiencies in the attorney's OC-400.1 form. This appeal
ensued, raising claims on behalf of claimant and, with regard
to the reduced counsel fee award, claimant's attorney.
affirm. Claimant argues that he should have been classified
as having a total industrial disability (see
Workers' Compensation Law § 35 ) under case law
providing that "a claimant who has a permanent partial
disability may nonetheless be classified as totally
industrially disabled where the limitations imposed by the
work-related disability, coupled with other factors, such as
limited educational background and work history, render the
claimant incapable of gainful employment" (Matter of
Roman v Manhattan & Bronx Surface Tr. Operating
Auth., 139 A.D.3d 1304, 1306  [internal quotation
marks, brackets and citations omitted]; see Matter of
Barsuk v Joseph Barsuk, Inc., 24 A.D.3d 1118, 1118
, lv dismissed 6 N.Y.3d 891');">6 N.Y.3d 891 , lv
denied 7 N.Y.3d 708');">7 N.Y.3d 708 ). However, claimant did not
raise this issue before the WCLJ, at the hearing or on appeal
to the Board, instead arguing that the medical evidence
established that he has a permanent total - not
partial - disability and that his lost wage-earning capacity
is 100%. The issue is therefore unpreserved for our review
(see Matter of Duncan v John Wiley & Sons, Inc.,
137 A.D.3d 1430, 1431 ; Matter of Stewart v NYC Tr.
Auth., 115 A.D.3d 1046, 1046 ). While there was
some development of the record with regard to nonmedical
factors relevant to total industrial disability, that issue
and inquiry would have raised a question of fact for the
Board to resolve (see Matter of Brady v Northeast Riggers
& Erectors, 132 A.D.3d 1226, 1227 ; Matter
of Rose v Roundpoint Constr., 124 A.D.3d 1033, 1034
) and is distinct from the issue of whether claimant
suffered a loss of wage-earning capacity (see
Workers' Compensation Law § 15  [w]; [5-a];
Matter of Paez v Lackman Culinary Servs., 140 A.D.3d
1462, 1464 ). Accordingly, as claimant never argued
this issue before the WCLJ or the Board, the Board cannot be
faulted for not addressing it, and this Court will not do so
for the first time on appeal (see Matter of Duncan v John
Wiley & Sons, Inc., 137 A.D.3d at 1431; Matter
of Hernandez v Excel Recyling Corp., 31 A.D.3d 1091,
1092 ; Matter of Forte v City & Suburban,
292 A.D.2d 738, 739 ; compare Matter of Paez v
Lackman Culinary Servs., 140 A.D.3d at 1463-1464).
addition, claimant's attorney argues that the Board erred
in reducing the WCLJ's award of counsel fees based upon
deficiencies in the OC-400.1 form, which was required because
the fee request exceeded $450 (see 12 NYCRR
300.17[d] ). Pursuant to Workers' Compensation Law
§ 24, counsel fees must be approved by the Board in the
exercise of its broad discretion (see Matter of Kennedy v
New York City Dept. of Corr., 140 A.D.3d 1572, 1574
). The Board may approve counsel fees "in an
amount commensurate with the services rendered and
having due regard for the financial status of the claimant
and whether the attorney... engaged in dilatory tactics or
failed to comply in a timely manner with [B]oard rules. In no
case shall the fee be based solely on the amount of the
award" (12 NYCRR 300.17 [f] [emphasis added]).
the Board properly found that the OC-400.1 form was deficient
based upon its "illegib[ility]." Forms submitted
for counsel fees must be "accurately completed" (12
NYCRR 300.17[d] ), and we agree with the Board's
finding that the description of the services rendered was not
legible. The Board also relied upon the absence of any
indication as to the specific amount of time spent on each of
the services rendered to claimant,  which is relevant to the
evaluation of the "services rendered" (12 NYCRR
300.17 [e]). While the dates and number of hours recorded on
each line of the form are legible, the descriptions
accompanying them are not, including one for "30"
hours, making impossible any assessment of the services
rendered. Under these circumstances, we cannot conclude that
the Board abused its discretion or acted in an arbitrary and
capricious manner in rejecting the form and reducing the
award of counsel fees to $450, the maximum amount permitted
in the absence of the required form (see 12 NYCRR
300.17[d] ; Matter of Kennedy v New York City Dept. of
Corr., 140 A.D.3d at 1574).
McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.
that the decision is affirmed, without costs.