Calendar Date: February 17, 2017
Geoffrey Schotter, New York City, for claimant.
T. Schneiderman, Attorney General, New York City (Marjorie S.
Leff of counsel), for Workers' Compensation Board,
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
November 3, 2015, which determined the amount of fees due to
claimant's licensed representative.
sustained work-related injuries to her ribs, left knee and
left foot on December 20, 2011 and retained the services of
Joel Fredericson, a licensed representative, shortly
thereafter (see Workers' Compensation Law §
24-a). Following several hearings, claimant was awarded
compensation at a temporary total disability rate.
Fredericson submitted a form OC-400.1 fee application in 2012
for five hours of work as claimant's licensed
representative, and was awarded the requested $2, 450 fee in
a December 2012 decision. Additional hearings, decisions,
appeals, an independent medical exam and depositions
followed, and claimant submitted a permanency report. In a
reserved decision filed in June 2015, a Workers'
Compensation Law Judge (hereinafter WCLJ) found that claimant
had a 50% schedule loss of use of her left knee and a 32.5%
schedule loss of use of her left foot, and awarded her $202,
689.44, less payment already made . On June 14, 2015,
Fredericson submitted a form OC-400.1 fee application
itemizing 61 hours of work performed on claimant's behalf
since he was first retained in December 2011, and requested a
fee of $28, 000, less $3, 075 in payments received. By
amended reserved decision dated July 23, 2015, the WCLJ
affirmed the scheduled loss of use determinations and award,
and awarded Fredericson a fee of $10, 700, which was
"based upon the work performed" and which was
apparently paid. Fredericson appealed to the Workers'
Compensation Board, requesting that the fee be increased to
$16, 500, which he argued would be commensurate with the
services rendered. Finding that the form OC-400.1 fee
application was insufficient and not accurately completed,
the Board reduced the fee to $450. Fredericson now appeals.
affirm. Pursuant to Workers' Compensation Law § 24,
the Board had broad discretion in approving a counsel fee
award (see Matter of Kennedy v New York City Dept. of
Corr., 140 A.D.3d 1572, 1574 ). Where counsel or a
representative seeks an award in excess of $450, he or she
must submit a properly completed form OC-400.1 specifying the
dates and time spent on each service provided (see
12 NYCRR 300.17; Matter of Tenecela v Vrapo Constr.,
146 A.D.3d 1217, 1219 ; Matter of Fernandez v Royal
Coach Lines, Inc., 146 A.D.3d 1220, 1220-1221 ).
"A requirement for such specificity is consonant with
the Board's obligation to 'approve a fee in an amount
of commensurate with the services rendered'"
(Matter of Fernandez v Royal Coach Lines, Inc., 146
A.D.3d at 1220, quoting 12 NYCRR 300.17 [f]). Here, the Board
properly found the form OC-400.1 fee application deficient in
several respects. Numerous entries that designated the date
as "several" included blocks of hours with only a
generic description of the services rendered. While specific
dates were provided for each hearing, the Board pointed out
that some of the information overlapped and conflicted with
the December 2012 fee application form. For instance, with
respect to hearings held on September 6, 2012 and October 4,
2012, Fredericson initially charged one hour, while the June
2015 application charges 2.5 hours for the same services.
Fredericson initially charged 2 hours for the December 30,
2011 client intake, but charged 3.5 hours for the intake in
the June 2015 application. As the Board astutely recognized,
the troubling discrepancies between the 2012 and 2015
applications called into question the integrity of the 2015
submission. As such, the Board's determination to reject
the 2015 application and reduce the fee to the $450 minimum
was not an abuse of discretion or arbitrary and capricious
(see Matter of Tenecela v Vrapo Constr., 146 A.D.3d
at 1219-1220; Matter of Fernandez v Royal Coach Lines,
Inc., 146 A.D.3d at 1221). Where, as here, the
application is seriously deficient, it is neither the
obligation of the Board nor this Court to parse the
application to identify any plausible entries (see
12 NYCRR 300.17 [h]).
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
that the decision is affirmed, without costs.
 The self-insured employer was directed to
withhold $28, 000 as a potential representative fee pending
submission and approval of a form ...