Calendar Date: May 1, 2018Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.__________Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),for appellants.__________Garry, P.J.Appeal from a decision of the Workers’ Compensation Board,filed March 8, 2017, which, among other things, assessed amonetary penalty against claimant’s counsel pursuant to Workers’Compensation Law § 114-a (3).Claimant sustained injuries when he slipped and fell on icewhile working as a service technician for a telephone company.He filed a claim for workers’ compensation benefits and aWorkers’ Compensation Law Judge (hereinafter WCLJ) establishedthe claim for injuries to his neck, left shoulder and lower back.-2- 525867Thereafter, claimant’s treating orthopedist, Alfred Faust,submitted a request for authorization to perform total discreplacement surgery on claimant’s cervical spine. The employer’sworkers’ compensation carrier denied the request based upon thereport of its orthopedic expert, Sanford Ratzan, who conducted anindependent medical examination of claimant. As medicaltestimony was relevant to this issue, the WCLJ directed theparties to submit for consideration the depositions of Faust,Ratzan and a third physician, Charles Milchteim.Accordingly, the carrier served subpoenas upon Faust andMilchteim directing them to be available for depositions onalternative dates and to provide certain medical documentation.The physicians thereafter failed to make themselves available, onany of the dates chosen, and were never deposed. As a result,Ratzan’s deposition was the only one provided to the WCLJ.Following a further hearing, the WCLJ, among other things, deniedauthorization for the surgery and assessed a penalty underWorkers’ Compensation Law § 25 (3) (c) against claimant’scounsel, Grey and Grey, LLP (hereinafter the firm), on the basisthat the attorney appearing on the firm’s behalf at the hearingengaged in dilatory tactics by mischaracterizing Ratzan’stestimony during her summation. On appeal, the Workers’Compensation Board upheld the WCLJ’s denial of authorization forthe surgery, but found that the WCLJ improperly assessed thepenalty against the firm under Workers’ Compensation Law § 25 (3)(c). Instead, the Board assessed the penalty under Workers’Compensation Law § 114-a (3) (i), concluding that the firmcontinued “the proceedings without reasonable grounds by usingdilatory tactics of not having . . . Milchteim and . . . Faustavailable for cross-examination by the carrier.” This appealensued.1The firm asserts that the Board erroneously imposed apenalty against it under Workers’ Compensation Law § 114-a (3)(i) due to the failure of Faust and Milchteim to appear fordepositions. We agree. Workers’ Compensation Law § 114-a (3)(i) provides the Board with the authority to assess a penaltyagainst a party in certain circumstances, but does not authorizethe Board to assess a penalty against a party’s counsel (seeMatter of Estwick v Risk Mgmt. Planning, 124 AD3d 1201, 1202[2015]). Such authority is instead conferred by Workers’Compensation Law § 114-a (3) (ii). This provision states, inpertinent part, that “reasonable attorneys’ fees shall beassessed against an attorney or licensed representative who hasinstituted or continued proceedings without reasonable grounds”(see Matter of Wolfe v New York City Dept. of Corr., 112 AD3d1197, 1198 [2013]; Matter of Banton v New York City Dept. ofCorr., 112 AD3d 1195, 1196 [2013]). Therefore, the Board imposeda penalty against the firm without the proper statutoryauthorization.Even if the penalty had been imposed under Workers’Compensation Law § 114-a (3) (ii), we would not find it to havebeen warranted under the circumstances presented. Workers’Compensation Law § 121 provides for the taking of depositions ofwitnesses in a workers’ compensation proceeding. Workers’Compensation Law § 119 further provides that an attorney for aparty may issue a subpoena or subpoena duces tecum to obtaintestimony or documentation in such a proceeding. As per theseprovisions, the carrier sought to obtain the testimony of Faustand Milchteim, as well as medical documentation prepared by them.These physicians failed to comply with the carrier’s requests,but there is nothing in the record to indicate that the firm wasresponsible for their actions. Indeed, at the hearing before theWCLJ, the attorney appearing on behalf of the firm explained thather office undertook affirmative efforts to have the physiciansappear for depositions, specifically contacting Faust both bytelephone and email. Pursuant to Workers’ Compensation Law § 119and the Board’s own regulations (see 12 NYCRR 300.10 [c]), it wasincumbent upon the carrier to take enforcement action under theprovisions of the CPLR upon the physicians’ failure to complywith its discovery requests (see CPLR 2308 [b] [1]; 3124). Inview of the foregoing, substantial evidence does not support theBoard’s assessment of a penalty against the firm (see generallyMatter of Calderon v New York City Dept. of Corr., 144 AD3d 1382,1383-1384 [2016]; Matter of Logan v Westchester Med. Ctr., 117AD3d 1311, 1312 [2014]).McCarthy, Devine, Aarons and Pritzker, JJ., concur.ORDERED that the decision is modified, without costs, byreversing so much thereof as assessed a penalty of $150 againstGrey and Grey, LLP, and, as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
