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  • Writer's pictureGREY & GREY

Workers’ Compensation – Late Payment Penalty (2015)

The Workers’ Compensation Board often issues documents called “Proposed Decisions,” which are technically the result of an administrative process called “conciliation.” The Board adopted a regulation saying that the penalty for failure to make timely payment of an award through “conciliation” is $500. However, the penalty for late payment after a formal hearing is 20% of the past-due benefits.

In this case, the Board refused to award our client the 20% late payment penalty, and instead limited her to the $500 conciliation penalty. We appealed, arguing that the Board’s regulation violated the statute and should be struck down. While the case was on appeal, the Board issued a “subject number” suspending the regulation in an apparent attempt to end the appeal. However, we continued to pursue a decision, and the Appellate Division, Third Department agreed with our position, striking down the Board’s regulation and holding that our client and all other injured workers were entitled to a penalty of 20% of any untimely payment, not just $500.

Because the courts rarely strike down an agency’s regulations, this is a notable and important decision.

Read the Liberius decision here.

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