Claim of Tenecela v. Vrapo Construction

ant 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.^[1]

We affirm. Claimant argues that he should have been classified as having a total industrial disability (see Workers’ Compensation Law § 35 [2]) 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 AD3d 1304 , 1306 [2016] [internal quotation marks, brackets and citations omitted]; see Matter of Barsuk v Joseph Barsuk, Inc., 24 AD3d 1118 , 1118 [2005], lv dismissed 6 NY3d 891 [2006], lv denied 7 NY3d 708 [2006]). 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 AD3d 1430 , 1431 [2016]; Matter of Stewart v NYC Tr. Auth., 115 AD3d 1046 , 1046 [2014]). 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 AD3d 1226 , 1227 [2015]; Matter of Rose v Roundpoint Constr., 124 AD3d 1033 , 1034 [2015]) and is

distinct from the issue of whether claimant suffered a loss of wage-earning capacity (see Workers’ Compensation Law § 15 [3] [w]; [5-a]; Matter of Paez v Lackman Culinary Servs., 140 AD3d 1462 , 1464 [2016]). 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 AD3d at 1431 ; Matter of Hernandez v Excel Recycling Corp., 31 AD3d 1091 , 1092 [2006]; Matter of Forte v City & Suburban, 292 AD2d 738 , 739 [2002]; compare Matter of Paez v Lackman Culinary Servs., 140 AD3d at 1463-1464 ).

In 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] [1]). 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 AD3d 1572 , 1574 [2016]). 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]).

Here, 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] [1]), 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,^[2] 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