In a case was established for the right knee, the claimant ultimately underwent right total knee replacement surgery. At a hearing, various awards were made, credit to New York State, and a $3,500 attorney fee was awarded, to be taken out of the reimbursement to the employer.

The parties stipulated to a 40% schedule loss of use, with the carrier allowed to take credit for all prior payments, and allowed the carrier to deduct the remaining amount of reimbursement to the employer in the sum of $20,149.34.  A Notice of Stipulated Decision was thereafter filed.

The claimant appealed the Stipulated Decision, arguing that there had been no meeting of the minds on the issue of the amount of the prior payments. The claimant alleged that the carrier took credit for the prior $3,500 attorney fee, and also deducted the full amount of the remaining reimbursement. Claimant alleged that he was underpaid by $3,500 as a result.  A Rebuttal was timely filed, noting that all parties had signed the stipulation and had agreed to the figures therein.

The Board Panel agreed with the claimant. The remaining amount of the reimbursement to the employer should have been reduced by the $3,500 previously taken from the reimbursement for an attorney fee. The Board Panel directed the carrier to pay the outstanding balance of $3,500 to the claimant. Carriers need to be aware that, even though they are entitled to full reimbursement for wages paid from a schedule loss of use award, they have to be careful not to double count on the prior wages already paid to the employer.