In January of 2023, the New York Workers’ Compensation Board enacted changes to the way attorney’s fees are handled in workers’ comp claims. Claimant attorneys are now required to follow a fee schedule with their clients. Before these changes, there were no specific requirements for the award of attorney’s fees in workers’ comp claims.

If you have filed a workers’ comp claim recently or plan to soon, these changes could affect your claim. You can learn more about filing a workers’ comp claim by contacting experienced New York workers’ compensation lawyer Paul Giannetti.

New Attorney’s Fee Schedule For New York Workers’ Comp Claims

Signed into law by New York Governor Kathy Hochul, the amendments to New York’s workers’ compensation laws include two new subdivisions to WCL §24. According to these amendments, the Workers’ Compensation Board must approve fee applications “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant” based on the following new schedule of attorney’s fees:

One-third of one week’s pay when an amount is awarded for continuous payments of weekly compensation benefits for temporary total or temporary partial disability.
When an award is made increasing the total amount of compensation or previously paid for temporary total or temporary partial disability, the attorney’s fees are 15 percent o the increase.
In claims involving schedule loss of use or permanent facial disfigurement, the attorney will receive 15 percent of the compensation amount above the previous payments.
For permanent total disability or permanent partial disability, the attorney’s fees are 15 percent of the compensation due in excess, previous payments, and a sum equivalent to 15 weeks of pay at the rate established by the Board.
Claimant attorneys receive 15 percent of Section 32 settlement awards

Statutory Changes to New York’s Workers’ Compensation Law

The New York Workers’ Compensation Board must follow several new statutory rules under the new amendments:

Attorneys must file a written fee application in all cases where requested fees are over $1,000.
Attorneys must specify the calculation used to determine their fees and certify that this amount follows the provisions of WCL § 24(2).
The previous requirement to describe services rendered and time spent has been waived for written fee applications.
The Board must approve a fee application for an appropriate amount based on the services rendered, the amount of compensation rewarded, and the financial state of the claimant.
According to a new provision, the Board shall determine an amount of fees allocated to prior, substituted-or attorneys who submit timely fee requests out of the total fees awarded.

Regulatory New York Workers’ Comp Changes

Several regulatory changes were made to sections 300.17, 300.36, and 300.38, to ensure that the regulations are following the new amendments that went into effect on January 1, 2023.

Board Rule 300.17

The following changes were made to section 300.17 of the Title 12 of the New York Codes, Rules, and Regulations (NYCRR):

Provision 300.17(c) was removed, which previously permitted the Board to refuse to award a requested fee if the attorney failed to serve and file a required notice of retainer or notice of substitution or get approval to withdraw from the case.
300.17(d)(1) has been amended to remove the previous requirement that attorneys specify the services rendered to their clients and the time spent on fee applications. Now, 300.17(c) and (d) include a requirement that fee applications must include the calculation used to determine the fee. Attorneys must also certify that their requested fees are consistent with the percentages outlined in the new fee schedule requirements.
An amendment to 300.17(d)(3) removed the requirement that absent claimants be informed 10 days before the awarding of a fee above $1,000 and state that they approve and have no objections to the award.
300.17(f), now known as 300.17(e), was amended to state that the board will approve a fee-based not just on the services rendered by the lawyer, but also on the amount of compensation awarded to the claimant.
Another amendment to 300.17(f) revoked the Board’s discretion to reduce or deny lawyer’s fees based on the lawyer failing to comply with Board rules, engaging in dilatory tactics, or unethical conduct.
300.17(f) was amended with a new requirement that the Board follows the fee schedule established in WCL § 24(2)(a-f) when awarding an attorney’s fee.
300.17(g) – now (f) – has been amended to specifically state that the Board determines the amount of fees set aside for substituted-for attorneys out of the total attorney’s fee awarded. Substituted-for attorneys and the current attorneys of clients each have the opportunity to write to the Board regarding the allocation of the fee.
300.17(h) – a provision that allowed the Board to award no fee if the claimant’s attorney failed to comply with the requirements of 300.17 – was removed.

12 NYCRR 300.36

An amendment to Board Rule 300.36(j) – regarding the approval of WCL § 32 waiver agreements – states that all fees awarded must be consistent with the rules outlined in WCL § 24(2)(f). In addition, a provision that previously stated that agreements may provide for “reasonable fees” was removed.

12 NYCRR 300.38

Board Rule 300.38(f), which covers the controverted claims process, was amended to remove paragraph (5). This paragraph previously allowed for mandatory, substantial fee reductions under the following circumstances:

Failure to timely serve and file a pre-hearing conference statement with the Board
Filing an incomplete pre-hearing conference statement for the claimant
Failure to list a witness on the claimant’s pre-hearing conference statement if that witness ended up testifying
Failure to include a copy of any document used to establish the claim with the claimant’s pre-hearing conference statement.

Implications of the 2023 NY Workers’ Comp Law Changes

These recent amendments to New York’s workers’ compensation laws change the way attorney’s fees are decided. Previously, there was no uniform method for determining attorney’s fees. But these amendments have allowed the Board to determine attorney’s fees using specific percentages based on which type of workers’ comp claim has been filed and the total amount of compensation that has been awarded.

Attorney’s fees in New York have always been paid out of the benefits awarded, meaning that claimants do not owe any attorney’s fees if their claims are denied. This is still the case, but attorney’s fees are now decided based on more uniform rules. Previously, the Board would consider a wide range of factors when deciding the amount of attorney’s fees, but these fees are now flat based on the types of compensation awarded to the claimant.

Learn More From a New York Workers’ Comp Lawyer

If you have recently suffered a work-related injury or illness and have questions about the workers’ comp process, Albany workers’ compensation lawyer Paul Giannetti is here to help. Paul has over two decades of experience representing injured New York workers and fighting for the financial compensation they deserve. Call Paul today at (866) 868-2960 to learn more about the claims process in a free consultation.