STATE OF NEW YORK COUNTY OF KINGS

STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------In the Matter of the Application of
LAURETTE LIBERIUS,
Index No. _______________
NOTICE OF PETITION
PURSUANT TO
CPLR ARTICLE 78
Petitioner,
- against NEW YORK STATE WORKERS’ COMPENSATION
BOARD; ROBERT E. BELOTEN, as the
CHAIRMAN OF THE NEW YORK STATE
WORKERS’ COMPENSATION BOARD;
and CITY OF NEW YORK
Respondents
-----------------------------------------------------------------PLEASE TAKE NOTICE that pursuant to New York Civil Practice Law and Rules
Article 78, Petitioner Laurette Liberius petitions the Supreme Court of the County of Kings, on
Monday, April 28, 2014 at 9:30 a.m. at 360 Adams Street, Brooklyn, New York, 11201 in
_____________________________, before the Hon. _________________________, to
(1) REVIEW Respondent WORKERS’ COMPENSATION BOARD’S failure to perform
the duties enjoined upon it by law;
(2) PROHIBIT Respondent WORKERS’ COMPENSATION BOARD from utilizing
non-hearing determinations in violation of law;
(3) MANDATE Respondent WORKERS’ COMPENSATION BOARD to comply with
the express terms of Workers’ Compensation Law Sections 20, 25(2-b) and 25(3)(f); and
(4) VACATE Respondent WORKERS’ COMPENSATION BOARD’s decision filed
December 10, 2013;
ALL TOGETHER WITH such other and further relief as to this honorable Court may
seem just and proper.
Dated:
April 8, 2014
Farmingdale, New York
GREY & GREY, L.L.P.
Attorneys for Petitioner
By: Robert E. Grey
360 Main Street
Farmingdale, New York 11735
(516) 249-1342
To:
Workers' Compensation Board
328 State Street
Schenectady, NY 12305-2318
Law Department
City of New York
350 Jay Street – 9th Floor
Brooklyn, New York 11201
STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------In the Matter of the Application of
LAURETTE LIBERIUS,
Index No. _______________
PETITION
Petitioner,
- against NEW YORK STATE WORKERS’ COMPENSATION
BOARD; ROBERT E. BELOTEN, as the
CHAIRMAN OF THE NEW YORK STATE
WORKERS’ COMPENSATION BOARD;
and CITY OF NEW YORK
Respondents
-----------------------------------------------------------------LAURETTE LIBERIUS, being duly sworn, deposes and states under penalty of perjury:
1.
I am the Petitioner is this proceeding.
2.
I reside at 111 East 83rd Street (2nd Floor), Brooklyn, New York 11236.
3.
I submit this Petition in support of a proceeding to require the New York State
Workers’ Compensation Board to comply with the law.
4.
I was injured at work on May 14, 2010.
5.
As a result of the injury, I lost seventeen percent of the use of my right arm
according to the Workers’ Compensation Board’s medical guidelines.
6.
Although the Workers’ Compensation Board held several hearings in my case, it did
not hold a hearing to make the award for the permanent loss of use of my arm.
7.
Instead, the Workers’ Compensation Board issued a “Proposed Decision” making
the award.
8.
No meeting or hearing was held in connection with the “Proposed Decision” being
issued.
9.
The “Proposed Decision” was filed on October 25, 2011, and was to become final
on November 29, 2011.
10. By July, 2012 my employer, the City of New York, had still not paid the award, and
my attorney requested that the Workers’ Compensation Board schedule a hearing so
that a penalty could be implemented.
11. The City of New York finally paid my award in September of 2012, almost a year
after the decision was issued.
12. At a hearing held on October 26, 2012 a Workers’ Compensation Law Judge refused
to award a late payment penalty, and instead fined the City of New York $500 for
failing to comply with a “conciliation” decision.
13. Only $300 of that fine was payable to me, with $200 payable to the Workers’
Compensation Board.
14. My attorney appealed this decision, but the Workers’ Compensation Board upheld
the Judge in a decision filed December 10, 2013.
15. The Workers’ Compensation Board did not follow the requirements of the law in my
case.
16. Because the Workers’ Compensation Board did not follow the requirements of the
law, I was deprived of the payment of a penalty to which I am entitled.
17. The amount of the penalty that is due to me is $5,181.16.
18. It appears that the procedure the Workers’ Compensation Board is following is not
limited to my case.
19. The Workers’ Compensation Board’s procedure is denying me and other similarly
situated injured workers compensation benefits that must be awarded as a matter of
law.
20. I have therefore filed this petition to (1) prohibit the Workers’ Compensation Board
from issuing decisions without holding a hearing or meeting as required by law; (2)
require the Board to award compensation benefits as required by law; and (3) vacate
the Board’s decision filed December 10, 2013 in my case.
Dated: New York, New York
April ___, 2014
____________________________
Laurette Liberius
Signed and sworn to before me this
___ day of April, 2014
_____________________________
Notary Public
STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------In the Matter of the Application of
LAURETTE LIBERIUS,
Index No. _______________
ATTORNEY’S
AFFIRMATION IN
SUPPORT OF PETITION
Petitioner,
- against NEW YORK STATE WORKERS’ COMPENSATION
BOARD; ROBERT E. BELOTEN, as the
CHAIRMAN OF THE NEW YORK STATE
WORKERS’ COMPENSATION BOARD;
and CITY OF NEW YORK
Respondents
-----------------------------------------------------------------ROBERT E. GREY, being an attorney duly licensed to practice law before the Courts of
the State of New York, affirms the following under the penalty of perjury:
1.
I am a partner in the law firm of Grey & Grey, LLP, attorneys for the Petitioner
herein.
2.
I submit this Affirmation in support of a Petition pursuant to CPLR Article 78
asking the Court to (1) review Respondent WORKERS’ COMPENSATION
BOARD’S (hereinafter “BOARD”) failure to perform the duties enjoined upon it by
law; (2) prohibit Respondent BOARD from utilizing non-hearing determinations in
violation of law; (3) mandate Respondent BOARD to comply with the express terms
of Workers’ Compensation Law Sections 20, 25(2-b) and 25(3)(f); and (4) vacate
Respondent BOARD’s decision filed December 10, 2013;
PETITIONER
3.
At all times relevant to this petition, petitioner was over 21 years old. Exhibit A.
4.
Petitioner, Laurette Liberius, is a resident of the County of Brooklyn, State of New
York. Exhibit A.
5.
Petitioner filed a claim for workers’ compensation benefits against her employer,
Respondent CITY OF NEW YORK (hereinafter “CITY”) with Respondent BOARD
regarding an accident of May 14, 2010. Exhibit A.
RESPONDENTS
6.
Respondent CITY is the entity responsible for payment of workers’ compensation
benefits to Petitioner. Exhibits B, C, D.
7.
Respondent BOARD is a state agency charged, among other things, with hearing
and determining workers’ claims for lost wage and medical benefits as a result of
work-related injuries. WCL §142(1).
8.
Upon information and belief, Respondent, Robert E. Beloten, is Chairman of the
New York State Workers’ Compensation BOARD and is responsible for enforcing
the provisions of the Workers’ Compensation Law. WCL §141.
FACTS
9.
Petitioner injured her right arm at work on May 14, 2010 while preventing a patient
from falling. Exhibit A.
10. Petitioner filed a claim for workers’ compensation benefits. Exhibit A.
11. Respondent CITY filed an employer’s report of accident confirming the events.
Exhibit B.
12. Respondent CITY did not dispute Petitioner’s claim and agreed that she suffered an
accident arising out of and in the course of her employment. Exhibit C.
13.
Respondent BOARD held hearings in Petitioner’s claim on December 1, 2010 and
March 23, 2011 in which it formally established her case and found that a monetary
award would be due if proof of a permanent injury was submitted. Exhibit D.
14. On or about May 12, 2011 Dr. Andranik Khatchatrian, a physician treating
Petitioner, submitted a report stating that she had suffered a 17% loss of function of
her arm as a result of the injury. Exhibit E.
15. On or about August 12, 2011 Respondent BOARD directed Respondent CITY to
either accept the report of Petitioner’s physician or submit contrary evidence within
60 days. Exhibit F.
16. On or about October 20, 2011, Petitioner’s attorney requested that Respondent
BOARD issue a decision implementing the opinion of her physician. Exhibit G.
17. On October 25, 2011, without holding a hearing or a conciliation meeting,
Respondent BOARD issued a “Proposed Decision” finding that Petitioner had a 17%
loss of function of her arm, entitling her to 53.04 weeks of benefits, a total of
$25,905.80. Exhibit H.
18.
When Respondent CITY failed to pay the award, Petitioner’s attorney engaged in
correspondence with Respondent BOARD seeking a final decision and a hearing to
impose a late payment penalty. Exhibit I.
19.
On or about September 4, 2012, Respondent CITY finally paid the award that had
been made almost a year earlier. Exhibit J.
20. On October 26, 2012, Respondent BOARD held a hearing on the question of
whether a late payment penalty was due. Exhibit K.
21. At the hearing, an administrative law judge declined to penalize Respondent CITY
for late payment of an award pursuant to Workers’ Compensation Law Section
25(3)(f), which penalty would have been $5,181.16, and instead imposed a fine
pursuant to Workers’ Compensation Law Section 25(2-b) for failure to comply with a
“conciliation” decision in the sum of $500, of which $300 was payable to Petitioner
and $200 was payable to Respondent BOARD. Exhibit K.
22. Petitioner appealed this decision, and Respondent CITY submitted a rebuttal to the
appeal. Exhibit L.
23. On appeal, Respondent BOARD affirmed the administrative law judge’s decision in
a decision filed December 10, 2013. Exhibit M.
24. Petitioner now brings this action seeking to prohibit Respondent BOARD from
issuing decisions absent a hearing or conciliation meeting as required by law, seeking
further to prohibit Respondent BOARD from implementing and engaging in a process
that is calculated to deprive her and other similarly situated injured workers of
benefits under the law, and seeking specifically to vacate the decision filed December
10, 2013 in her case.
RELEVANT STATUES AND CASES
25. Workers’ Compensation Law Section 20 provides in pertinent part:
1. … The chair or board shall make or cause to be made such investigation as it
deems necessary, and upon application of either party, shall order a hearing,
and within thirty days after a claim for compensation is submitted under this
section, or such hearing closed, shall make or deny an award, determining
such claim for compensation, and file the same in the office of the chair.
Immediately after such filing the chair shall send to the parties a copy of the
decision. Upon a hearing pursuant to this section either party may present
evidence and be represented by counsel. The decision of the board shall be
final as to all questions of fact, and, except as provided in section twentythree of this article, as to all questions of law.
26. Workers’ Compensation Law Section 25(3)(f) provides that “[i]f the employer or its
insurance carrier shall fail to make payments of compensation according to the
terms of the award within ten days … there shall be imposed a penalty equal to
twenty percent of the unpaid compensation which shall be paid to the injured
worker or his or her dependents.”
27. The Appellate Division, Third Department, which has jurisdiction over appeals from
decisions of Respondent BOARD pursuant to Workers’ Compensation Law Section
23, has held that the purpose of WCL §25 is to discourage late payments of benefits.
Keser v. New York State Elmira Psychiatric Center et al., Workers’ Compensation
Board, 243 A.D.2d 783, 662 N.Y.S.2d 627, 1997 N.Y. App. Div. LEXIS 9708.
28.
The Third Department has further held that “[t]he penalty provisions…advance a
‘public policy in favor of prompt payment of Workers’ Compensation benefits to
injured employees’ since ‘the uniform assessment of penalties in all cases of late
payment will ultimately benefit employees by deterring carriers from delaying award
payments…” Voorhees v. Wal-Mart et al., Workers’ Compensation Board, 305
A.D.2d 893, 894; 758 N.Y.S.2d 857, 2003 N.Y. App. Div. LEXIS 5794.
29. In the case at bar and others, however, Respondent BOARD has interpreted the
statutory provision enforcing the timely payment of compensation as applying only to
an award entered following a hearing. Exhibits M, N.
30. Specifically, Respondent BOARD published regulations regarding the Conciliation
proceeding, 12 NYCRR 312.5, providing in part that “The penalties and assessments
contained in paragraph (f) of subdivision 3 of section 25 of the Workers’
Compensation Law, for late payment of awards, shall not be applicable to conciliation
cases.” 12 NYCRR 312.5(j).1
31. In fact, as outlined in Exhibit N, Respondent BOARD previously chose to enforce
the statute in all cases, and subsequently “disavowed” that policy in cases that do not
involve an award following a formal hearing. Exhibit N.
32. Although Respondent BOARD held hearings in this matter on December 1, 2010
and March 23, 2011, it did not hold a formal hearing pursuant to Workers’
Compensation Law Section 20 to implement the final award in the case. Exhibits D,
H.
33. Instead, Respondent BOARD issued a “Proposed Decision” without a formal
hearing. Exhibit H.
34. When Petitioner applied to Respondent BOARD for a late payment penalty pursuant
to Workers’ Compensation Law Section 25(3)(f), Respondent BOARD declined to
apply that provision of the statute, relying instead on Workers’ Compensation Law
Section 25(2-b) and 12 NYCRR 312.5. Exhibit M.
1
Respondent Robert E. Beloten issued an order on April 2, 2014, suspending 12 NYCRR 312.5(j). This will be
discussed in greater detail below.
35.
Workers’ Compensation Law Section 25(2-b) relates to “Conciliation.” WCL §
25(2-b).
36. The statute provides that conciliation may be used to address “[c]laims where the
expected duration of benefits is fifty-two weeks or less.” WCL § 25(2-b)(b).
37. The statute further requires that where the case is subject to “conciliation, a meeting
shall be scheduled, if necessary, within thirty days with all concerned parties before a
conciliation counsel.” WCL § 25(2-b)(c).
38. The statute requires that the parties provide “written consent to participate in the
conciliation process.” WCL § 25(2-b)(e).
39. As such written consent occurs during a conciliation meeting, the only opportunity
that claimants have to provide written consent to the conciliation process is the
conciliation meeting. WCL § 25(2-b)(e).
40. The statute provides that a “proposed decision” issued as the result of conciliation
“shall constitute a final award of the Board for all purposes except that it shall not be
reviewable under sections twenty-two or twenty-three of” the law. WCL § 25(2-b)(f).
41. Finally, the statute provides that “[a]fter the proposed decision has become final, the
carrier shall make payments of any award as required in the decision within ten days.
If, however, the carrier does not make the payments as required in the decision within
ten days of the date in which the proposed decision becomes final, the chair shall
impose a fine of five hundred dollars for failure to live up to the terms of the
decision.” WCL § 25(2-b)(h).
42. Because the decision in the case at bar was a “proposed decision,” Respondent
BOARD only imposed a fine pursuant to Workers’ Compensation Law Section 25(2-
b), and declined to impose a penalty pursuant to Workers’ Compensation Law
Section 25(3)(f). Exhibit M.
ARGUMENT
43. Petitioner submits that Respondent BOARD failed to perform the duty enjoined
upon it by law in this case for the following reasons: (1) the award in this case was
for 53.04 weeks of compensation, which exceeds the jurisdictional limit of fifty-two
weeks for which Respondent BOARD may utilize the conciliation process; (2) no
“claim for conciliation” was made as required by Workers’ Compensation Law
Section 25(2-b)(c); (3) Respondent BOARD failed to schedule a meeting as required
by statute prior to issuing a “proposed decision,” and may not properly issue proposed
decisions where it fails to follow the statutory requirements; (4) Respondent BOARD
failed to enforce the provisions of the conciliation statute that provide that a
“proposed decision shall constitute a final award of the BOARD for all purposes,”
including the enforcement of timely payment and penalties for untimely payment; (5)
the use of conciliation to enter monetary awards to injured workers without
enforcement of timely payment improperly vitiates their right to timely payment; and
(6) Respondent BOARD lacks authority to create its own administrative process in
contravention of the statute.
CONCILIATION PROCEDURES ARE STATUTORILY
PERMITTED ONLY FOR CLAIMS OF 52 WEEKS OR LESS
44. WCL §25(2-b)(b) (12 NYCRR 312.2) sets forth that “Claims where the expected
duration of benefits is fifty-two weeks or less shall be transferred for conciliation
within thirty days of receipt of a carrier’s response to notice of index required under
this section…” (emph. added).
45. Thus, claims wherein the expected duration of benefits exceeds fifty-two weeks
cannot, under the statute, be transferred to a conciliation proceeding.
46. The medical report submitted to Respondent BOARD on 5/12/11, found a 17%
schedule loss of use of her right arm which, if implemented, would entitle petitioner
to 53.04 weeks of benefits.
47. Respondent BOARD therefore had actual knowledge that the claim in this matter
exceeded the jurisdictional limit established for the conciliation process.
48. The time frame of fifty-two weeks or less is a jurisdictional limitation set out in the
plain language of the statute, and is not subject to interpretation by Respondent
BOARD.
49. Respondent BOARD’s attempt to “interpret” the statute otherwise contravenes wellestablished case law holding that statutory interpretation is superfluous “when the
words have a definite and precise meaning…[or] to go elsewhere in search of
conjecture in order to restrict or extend the meaning…” McCluskey v. Cromwell, 11
NY 593, 601 (1854).
50. Additionally, as the Court of Appeals held in Belmonte v. Snashall, 2 N.Y.3d 560,
813 N.E.2d 621, 780 N.Y.S.2d 541 (2004), where “the question [of interpretation of a
statutory authorization] is one of pure statutory reading and intent, dependent only on
accurate apprehension of legislative intent,” the agency should be afforded no
deference in its interpretation.
51. Respondent BOARD, therefore, should be afforded no deference in interpreting the
statutory authorization set out by WCL §25(2-b)(b), where the statute clearly sets out
that only claims where the expected duration of benefits is fifty-two weeks or less can
be transferred for conciliation.
52. Respondent BOARD must therefore comply with the express terms set out in WCL
§25(2-b)(b) and only refer those claims to conciliation where the expected duration of
benefits is fifty-two weeks or less.
NO CLAIM FOR CONCILIATION WAS FILED BY THE CARRIER
53. WCL §25(2-b)(c) provides that “Upon receipt of a claim for conciliation, a meeting
shall be scheduled…” thereby establishing that prior to issuing a proposed decision, a
claim for conciliation must be made.
54. In Petitioner’s case, within five days of Petitioner’s attorney’s request for a decision,
Respondent BOARD simply issued a “Proposed Decision” finding Petitioner to have
a 17% loss of function of her arm. Exhibit H.
55. Thus, a claim for conciliation was never made prior to issuing a proposed decision.
56. Petitioner was therefore unaware that her claim was transferred to the conciliation
proceeding, as required by the statute. WCL §25(2-b)(c).
57. Respondent BOARD once again failed to comply with the express terms set forth in
the Workers Compensation Law, mandating that a claim be made for conciliation
prior to a conciliation counsel issuing a proposed decision.
58. Respondent Board, when submitting a case for conciliation, must therefore ensure
that a claim for conciliation is made, in compliance with the statute.
RESPONDENT BOARD FAILED TO SCHEDULE A CONCILIATION MEETING
59. WCL §25(2-b)(c) provides that “Upon receipt of a claim for conciliation, a meeting
shall be scheduled, if necessary, within thirty days with all concerned parties before a
conciliation counsel.”
60. The purpose of these meetings, per the statute, is to review all information relative to
the claim, including wage information, medical records, date of accident or injury,
and the amount of time lost from work as a result of the injury. WCL §25(2-b)(c).
61. Furthermore, the meeting affords the claimant the opportunity to offer his or her
“written consent to participate in the conciliation process…” WCL§25(2-b)(e).
62. Finally, the meeting affords the claimant the opportunity to exercise “their right to
withdraw from [the conciliation process]…” WCL §25(2-b)(e).
63. Such a meeting, therefore, is vital to protecting the interests of the claimant in
pursuing his or her Workers’ Compensation benefits, as it makes all evidence
available to all the parties for review, and gives the claimant the opportunity to opt
out of the conciliation process prior to the issuance of a proposed decision, and opt
into a full hearing instead.
64. The conciliation meeting is, in fact, the only opportunity that the statute affords the
claimant to opt out of the conciliation process prior to a proposed decision being
issued; all other provisions of the statute giving claimant the chance to opt out do so
once the proposed decision has already been issued. WCL §25(2-b).
65. Therefore, in cases like the Petitioner’s wherein a proposed decision is issued without
a conciliation meeting taking place beforehand, the claimant’s statutorily prescribed
right to withdraw from the conciliation process and to have his or her case transferred
to a regular calendar hearing process instead, is severely limited.
66. Once a proposed decision has been issued, all parties have only thirty days to object
to the decision and have the matter transferred to the regular calendar hearing process.
WCL §25(2-b)(f).
67. Thus, if no conciliation meeting is held prior to issuing the proposed decision, the
claimant must wait until the proposed decision is issued to object to said decision and
request a regular hearing, all of which ultimately delays claimant’s receipt of his or
her award.
68. If the Board properly allows claimant to withdraw from the conciliation process in a
conciliation meeting, prior to a proposed decision being issued, the claimant will
receive his or her benefits sooner than if he or she had to wait for a proposed decision
to withdraw.
69. If no objections to the proposed decision are made within 30 days, the decision is
considered a final award in the matter. WCL §25(2-b)(f).
70. In order to comply with the statutorily prescribed opportunity afforded to claimants to
either consent or to opt out of the conciliation process prior to the issuance of a
proposed decision, counsel must hold a conciliation meeting prior to issuing the
proposed decision.
71. Respondent BOARD must therefore comply with the terms of the WCL §25(2-b) and
give petitioner and all claimants the opportunity both to consent to and to opt out of
the conciliation process at a conciliation meeting.
THE BOARD FAILED TO IMPOSE A PENALTY ON EMPLOYERS’ LATE
PAYMENT OF AWARD, IN CONTRAVENTION OF THE STATUTE
72. WCL §25(2-b)(f) provides that “If no objection is made during such thirty day period
the proposed decision shall constitute a final award of the Board for all purposes…”
which includes the enforcement of timely payment and penalties for untimely
payment. WCL §25(2-b)(f) (emphasis added).
73. Workers’ Compensation Law §25(3)(f) expressly provides:
If the employer or its insurance carrier shall fail to make payments of
compensation according to the terms of the award within ten days or the
uninsured employers' fund shall fail to make payments of compensation
according to the terms of the award within thirty days after such ten day
period except in case of an application to the Board for a modification,
rescission or review of such award, there shall be imposed a penalty equal to
twenty percent of the unpaid compensation which shall be paid to the injured
worker or his or her dependents, and there shall also be imposed an
assessment of fifty dollars, which shall be paid into the state treasury.
74. Section (h) of WCL §25(2-b) imposes a fine on the employer for failing to timely
make payments.
75. The fine is always set to $500, regardless of the amount of the award, and is payable
$300 to the claimant and $200 to Respondent BOARD “for the operation and
administration of this chapter.”
76. Respondent Robert E. Beloten (hereinafter “BELOTEN”) issued an order on April 2,
2014, suspending the application of 12 NYCRR 312.5(j), which provides that, when
the Board issues a proposed decision rather than a decision pursuant to a hearing, the
Board cannot impose a penalty for late payment of award pursuant to WCL §25(3)(f).
77. Respondent BELOTEN issued this order pursuant to 12 NYCRR 312.6, which
provides that “[t]he Chair may, in his or her discretion, suspend or modify the
application of the rules in this part.” 12 NYCRR 312.6 (emphasis added).
78. Respondent BELOTEN stated in his order that “any mandatory penalties pursuant to
WCL §25(2-b)(h) will be subsumed within the WCL §25(3)(f) penalty if 20% of the
award exceeds $500, so that the late payment of compensation awarded by a final
conciliation decision shall in most instances be the same as the late payment penalty
stemming from a Notice of Decision rendered by a WCL Judge.” (emphasis added).
79. By merely suspending the regulation, Respondent BELOTEN failed to acknowledge
that the regulation is, in fact, illegal.
80. Respondent Board’s regulation 12 NYCRR 312.5(j) is inconsistent with WCL §25(2b), which contains no limitation regarding the imposition of the penalty in WCL
§25(3)(f) on employers for late payment following a proposed decision.
81. In fact, Respondent BOARD’S regulation is directly contradictory to the statute,
which specifically states that a “proposed decision shall constitute a final award of the
Board for all purposes” except appeals. WCL §25(2-b)(f) (emphasis added).
82. The legislature, in drafting WCL §25(2-b), could have included in section (h),
pertaining to penalties for late payments, that the 20% penalty prescribed by WCL
§25(3)(f) did not apply to proposed decisions, but the legislature did not do so.
83. As WCL §25(2-b) does not explicitly exclude the 20% penalty for late payment of
award, the plain language of the law has provided no indication that the penalty and
the $500 fine are mutually exclusive.
84. Moreover, as both the Third Department and Respondent BOARD itself have
articulated on numerous occasions, the purpose of WCL §25(3)(f) is to discourage
employers from issuing late award payments to claimants. 243 A.D.2d 783, supra
para. 27; 305 A.D.2d 893, supra para. 28.
85. By imposing a $500 fine on the employer rather than awarding the claimant a 20%
penalty, Respondent BOARD is circumventing the purpose of WCL §25(3)(f) of
discouraging employers from issuing late award payments to claimants.
86. Where, as here, the Legislature has provided two separate penalties in the statute and
has not written into the statute that one penalty is “subsumed” in the other penalty, the
Workers Compensation Board lacks the authority to issue an order “subsuming” one
penalty into the other.
87. The fine under WCL §25(2-b)(h), like the penalty under WCL §25(3)(f), is essential
to impose on the employer for late payment of awards; just as the penalty encourages
timely payment of workers compensation awards in all cases, the fine enforces the
agreement that all parties reach in consenting to a conciliation proceeding.
88. “All purposes” would therefore plainly include the imposition of both a late payment
penalty pursuant to WCL §25(3)(f), and a fine pursuant to WCL §25(2-b)(h).
89. Respondent BOARD may not enact a regulation in plain contradiction to the statute;
as the Court of Appeals has held, “[w]hen a statute describes the particular situation
in which it is to apply and no qualifying exception is added, an irrefutable inference
must be drawn that what is omitted or not included was intended to be omitted or
excluded.” Matter of Alonzo M. v. New York City Dep’t of Probation, 72 N.Y.2d 662,
665; 536 N.Y.S.2d 26, 28-29; 532 N.E.2d 1254, 1256-57 (1988).
90. The Chair’s suspension of 12 NYCRR 312.5(j) via his April 2, 2014 order does not
make this action moot, because the Chair, in his authority, could reverse the
suspension at any time, putting this regulation back into effect despite the fact that it
contradicts the statute.
91. Moreover, the suspension does not provide penalties due under WCL §25(3)(f)
retroactively to claimants like the Petitioner, to whom the unlawful regulation was
applied.
92. Respondent BOARD, therefore, must abide by the statute and impose the 20%
penalty as prescribed by §25(3)(f) on all Workers Compensation matters decided via
proposed decision, as well as the $500 fine that the BOARD imposes on the employer
in those cases.
THE LACK OF PENALTY FOLLOWING A
CONCILIATION VITIATES TIMELY PAYMENT OF AWARDS
93. In the claimant’s case, the amount the claimant would have received as a result of the
late payment, had the claimant’s claim gone to a hearing as opposed to being issued a
proposed decision, would have been 20% of $25,905.80, or $5181.16, over ten times
the amount the fine respondent BOARD imposed.
94. The substantial difference between the penalty and the fine amount demonstrates
how critical it is to impose the penalty following late payment of proposed decision
awards as well, in order to preserve the purpose of the statute of discouraging
employers from late payment.
95. Thus, in order to comply with the Workers Compensation Law, Respondent BOARD
must require that, when a claimant is paid the award of a proposed decision more than
ten days after the award has been issued, both the penalty and the fine be imposed on
the employer.
THE WORKERS COMPENSATION BOARD CANNOT
CREATE ITS OWN ADMINISTRATIVE PROCESS IN
CONTRAVENTION OF THE STATUTE
96. Article 3, Section 1 of the New York State Constitution provides that the legislative
power of the State shall be vested in the Senate and Assembly.
97. Article 4, Section 1 of the New York State Constitution provides that the executive
power of the State shall be vested in the Governor and the executive department,
agencies and Board.
98. The Separation of Powers doctrine requires that no one branch of the New York State
government be allowed to arrogate unto itself powers residing entirely in another
branch of the New York State government.
99. By enacting 12 NYCRR 312.5 – insofar as the same limits the recovery of claimants
of a penalty for late payment of a Workers’ Compensation award – Respondent
BOARD arrogated unto itself powers that reside entirely in the New York State
Legislature.
100.
Any changes to the rights established by WCL §25(2-b) must originate with the
Legislature, and by enacting 12 NYCRR 312.5 insofar as the same limits the
recovery of claimants as to their penalty for late payment of a Workers’
Compensation award—the BOARD enacted rules which are inconsistent with the
rights mandated by WCL §25(2-b)
WHEREFORE, petitioner respectfully requests that an order and judgment be entered
pursuant to CPLR Article 78:
1. Declaring that Respondent BOARD has unlawfully submitted claims to conciliation
wherein the duration of benefits exceeds the jurisdictional limitation to submit claims
to conciliation, in violation of WCL §25(2-b).
2. Declaring that Respondent BOARD failed to hold a conciliation meeting to afford
claimant the opportunity to consent to or to withdraw from the conciliation
proceeding, in violation of WCL §25(2-b).
3. Declaring that Respondent BOARD failed to impose a penalty on the employer for
untimely payment of benefits, in violation of WCL §25(2-b) and WCL §25(3)(f).
4. Declaring that the BOARD enacted 12 NYCRR 312.5 in violation of the Separation
of Powers doctrine.
5. Permanently enjoining the Workers’ Compensation BOARD and its Chair from
utilizing non-hearing determinations where a claimant’s duration of benefits exceeds
the jurisdictional limitation, in violation of WCL §25(2-b).
6. Permanently enjoining the Workers’ Compensation BOARD and its Chair from
utilizing non-hearing determinations without holding a conciliation meeting prior to
issuing the determination, in violation of WCL §25(2-b).
7. Permanently enjoining the Workers’ Compensation BOARD and its Chair from
failing to impose a penalty on an employer for untimely payment of benefits, in
violation of WCL §25(2-b) and WCL §25(3)(f).
8. Awarding petitioner the reasonable costs, disbursements and fees of this proceeding,
and granting petitioner such other further relief as to this Court may deem just and
proper.
DATED:
April 8, 2014
Farmingdale, NY
GREY AND GREY
Attorneys for Petitioner
LAURETTE LIBERIUS
360 Main Street
Farmingdale, NY 11735
(516) 249-1342
By:
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