WCL § 24(2) Fee Schedule Exclusivity: No Attorney’s Fees Based on WCL § 25 Late-Payment Charges

Introduction

Matter of Gonzalez v. Northeast Parent & Child Socy. (Ct App, Mar. 17, 2026) addresses the scope of the Workers’ Compensation Board’s authority to approve claimant’s attorney’s fees after the Legislature’s 2023 amendments to Workers’ Compensation Law (“WCL”) § 24. The claimant, Wilfredo Gonzalez, obtained a compensation award for a work-related injury. After the carrier paid late, the Workers’ Compensation Law Judge imposed late-payment assessments under WCL § 25 (1) (e) and WCL § 25 (3) (f) (including a 20% penalty payable to the claimant and a $50 payment to the State Treasury). Claimant’s counsel sought additional attorney’s fees calculated on those late-payment amounts.

The central issue was narrow but consequential: whether amended WCL § 24 (2) authorizes the Board to approve attorney’s fees “based on” (i.e., generated by and calculated from) the sums assessed against a carrier for untimely payment under WCL § 25.

Summary of the Opinion

The Court of Appeals (Rivera, J.) held that WCL § 24 (2) does not authorize attorney’s fees based on late-payment charges assessed under WCL § 25 (1) (e) and WCL § 25 (3) (f). The Court reasoned that, after the 2021–2022 amendments (effective Jan. 1, 2023), WCL § 24 (2) establishes a mandatory fee schedule and requires attorneys to certify that the requested fee is “in accordance with” that schedule. Because the schedule does not include WCL § 25 charges as a fee base or category, the Board lacks authority to approve such fees.

The Court affirmed the Appellate Division’s order (232 AD3d 1011 [3d Dept 2024]) and left any policy change to the Legislature.

Analysis

Precedents Cited

1) Text-first statutory interpretation

  • Matter of Raynor v Landmark Chrysler, 18 NY3d 48 (2011): quoted for the principle that the statutory text is the “clearest indicator” of legislative intent and is the starting point for interpretation.
  • State of New York v Patricia II, 6 NY3d 160 (2006): invoked for the rule that unambiguous statutory language must be given its plain meaning.
  • Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55 (2013): cited for the maxim that courts cannot supply, by implication, provisions the Legislature omitted.
  • Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167 (2019): relied on to reinforce that courts may not rewrite statutes to achieve preferred outcomes; policy judgments belong to the Legislature.
  • Matter of Reclaim the Records v New York State Dept. of Health, — NY3d —, 2025 NY Slip Op 03102 (2025): used to frame the inference that what the Legislature lists is included and what it omits is excluded, especially where the statute is detailed.
  • Matter of Walsh v New York State Comptroller, 34 NY3d 520 (2019): referenced for the proposition that when text is unambiguous, courts need not resort to legislative history.

2) Canon of construction (expressio unius)

  • People v Page, 35 NY3d 199 (2020): quoted for the expressio unius formulation that where a law expressly describes what applies, an inference arises that omissions are intentional.

3) Presumption of legislative awareness of existing law/administrative practice

  • Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367 (2007): cited for the presumption that the Legislature is aware of existing law when it enacts amendments.
  • Board-panel decisions illustrating the pre-amendment practice of approving fees based on WCL § 25 late-payment awards: Fiddler on the Roof, 2006 NY Wrk Comp LEXIS 9726; City of Rochester, 2012 NY Wrk Comp LEXIS 5931; The Times Herald Record, 2004 NY Wrk Comp LEXIS 12065; Centre Street Systems Inc., 2022 NY Wrk Comp LEXIS 6967. These did not bind the Court, but they provided context for what the Legislature arguably displaced by enacting a mandatory schedule.

4) Meaning of “compensation” and liberal construction in the WCL

  • Matter of Keser v New York State Elmira Psychiatric Ctr., 92 NY2d 100 (1998): both sides used Keser as a key reference point. The majority acknowledged Keser’s “liberal construction” language, but distinguished it as extending “compensation” to include amounts “paid to others due to liens,” not penalties. The dissent relied on Keser to argue that “payable” signals breadth and supports treating WCL § 25 penalties as “compensation.”
  • Mental Hygiene Legal Serv. v Sullivan, 32 NY3d 652 (2019): cited for the presumption that identical words are used consistently across a statute absent contrary intent—then used by the majority to say WCL § 24 (2) shows contrary intent for fee-calculation purposes.

5) Other supporting citations (context and methodology)

  • Cruz v TD Bank, N.A., 22 NY3d 61 (2013): used to support the “if the Legislature intended X, it would have said so” approach, particularly apt when the Legislature drafted a detailed schedule.
  • Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305 (1982): invoked to restate the WCL’s broad purpose of providing a swift and sure source of benefits.
  • Cases referenced in Footnote 8 to illustrate that courts sometimes consult legislative history to confirm the reading of unambiguous text: Colon v Martin, 35 NY3d 75 (2020); Alifieris v American Airlines, 63 NY2d 370 (1984); People v Suber, 19 NY3d 247 (2012).
  • Dissent’s methodology citations about when canons apply: Stefanik v Hochul, 43 NY3d 49 (2024); Bender v Jamaica Hosp., 40 NY2d 560 (1976); John P. v Whalen, 54 NY2d 89 (1981); Matter of Burns, 55 NY2d 501 (1982); People v Francis, 30 NY3d 737 (2018); and additional dissent references to lien doctrine and history: Matter of Heinsheimer, 214 NY 361 (1915); Carman v Eur. Am. Bank & Tr. Co., 78 NY2d 1066 (1991); New York Cent. R. Co. v White, 243 US 188 (1917).

Legal Reasoning

  1. The 2023 pivot from discretion to schedule. The majority treated the amendments to WCL § 24 as a structural shift: the pre-2023 version gave the Board broad discretion (“paid therefrom only in the manner fixed by the [B]oard”), while the amended statute requires: (i) a fee application; (ii) a certification that the fee is “in accordance with” the statute; and (iii) Board approval “in accordance with” the schedule.
  2. Schedule completeness and the certification requirement. The Court emphasized that WCL § 24 (2) now lists “six categories” with set calculations, and that attorneys must certify their requested fee fits the schedule. Because the schedule contains no category or calculation tied to WCL § 25 late charges, a request “based on” those charges cannot satisfy the certification prerequisite.
  3. Rejecting the “penalty-as-compensation” bridge. Counsel (and the dissent) tried to route WCL § 25 sums into the WCL § 24 schedule by arguing they are “compensation” under WCL § 2 (6). The majority accepted that “compensation” can be construed liberally in some contexts (Matter of Keser v New York State Elmira Psychiatric Ctr.), but held that the textual design of WCL § 24 (2) and the way WCL § 25 speaks separately of “compensation” and “penalties” manifests a “contrary intent” for fee-calculation: the schedule is keyed to compensation for injury/death awards, not enforcement penalties for late payment.
  4. Expressio unius as confirmation. Even assuming ambiguity, the Court said the schedule’s detail triggers People v Page’s expressio unius inference. The Legislature amended WCL § 24 against a backdrop of Board decisions awarding fees based on WCL § 25 penalties (The Times Herald Record, Fiddler on the Roof, City of Rochester), yet did not include WCL § 25 in the schedule. The majority treated that silence as intentional exclusion.
  5. Legislative purpose does not override text. While the amendments aimed to improve representation by creating “predictability and consistency,” the majority found no legislative-history signal that the Legislature intended to preserve WCL § 25-based fees. The Court also discounted the incentive argument as speculative and, in any event, a policy question for the Legislature.

Impact

  • Fee-base restriction in late-payment litigation. Claimant’s attorneys may still pursue WCL § 25 late-payment charges for their clients, but—under this decision—cannot obtain additional Board-approved fees calculated from those penalty/charge amounts under WCL § 24 (2).
  • Shift in enforcement economics. The ruling may reduce the financial incentive for counsel to litigate late-payment enforcement disputes—particularly small-dollar penalty issues—because the fee schedule remains tied to the underlying compensation award rather than delinquency consequences.
  • Administrative uniformity. The decision creates a bright-line rule for the Board: fee approval must map onto the six scheduled categories, reducing the Board’s need to adjudicate fee requests premised on WCL § 25 charges.
  • Legislative pressure point. If stakeholders view the result as undermining prompt payment enforcement or access to counsel, the Court’s reasoning directs the remedy to statutory amendment—e.g., adding a WCL § 25 category to the WCL § 24 (2) schedule or otherwise authorizing fees for penalty-collection work.

Complex Concepts Simplified

Mandatory fee schedule (WCL § 24 (2))
A statute-set menu of fee formulas. The Board’s role becomes largely administrative: confirm the case fits a listed category and apply the formula, rather than exercise broad discretion to set fees case-by-case.
Late-payment charges/penalties (WCL § 25 (1) (e) and (3) (f))
Extra amounts assessed when a carrier/employer pays compensation late. Some sums accrue “for the benefit of the injured worker” and must be paid with the compensation; WCL § 25 (3) (f) also includes a $50 payment to the State. The Court treated these as enforcement consequences distinct from the injury-based compensation award for purposes of attorney-fee calculation under WCL § 24 (2).
Charging lien
A legal claim by an attorney against the client’s recovery (here, the compensation award) to secure payment of fees approved by the Board. The majority used lien logic to emphasize the conceptual separation between the compensation award and the attorney’s fee derived from it.
Expressio unius est exclusio alterius
A canon meaning “the expression of one thing implies the exclusion of others.” Here, because the Legislature listed six fee categories and did not list WCL § 25 penalties, the majority inferred intentional exclusion—especially given the amendments’ move to a detailed, mandatory schedule.
“Compensation” (WCL § 2 (6)) and the majority–dissent divide
The dissent read “compensation” (money allowance “payable” to an employee) broadly enough to include WCL § 25 penalties, making them part of the fee base by straightforward arithmetic. The majority concluded that, whatever “compensation” may mean in other settings, WCL § 24 (2)’s structure and schedule show a narrower fee-calculation intent that does not incorporate WCL § 25 assessments.

Conclusion

Matter of Gonzalez v. Northeast Parent & Child Socy. establishes that, after the 2023 amendments, WCL § 24 (2) is exclusive: the Board may approve attorney’s fees only as authorized by—and calculable under—the statute’s six-part fee schedule. Because that schedule contains no provision for fees “based on” late-payment assessments under WCL § 25 (1) (e) and WCL § 25 (3) (f), the Board lacks authority to award them. The decision turns on a strict textual approach to the amended fee scheme and signals that any restoration of WCL § 25-based fees must come from the Legislature, not judicial interpretation.