Opinion
No. 575 C.D. 2013
09-25-2013
Fred Mason, Petitioner v. Workers' Compensation Appeal Board (Upper Providence Township and Amerihealth Casualty Services), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Fred Mason (Claimant) petitions for review of the March 20, 2013 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) denying a petition filed by Upper Providence Township (Employer) to suspend and/or terminate Claimant's compensation benefits, but modified the decision to reflect the approval of a 20% counsel fee only as of January 20, 2010. We now affirm.
The underlying facts of this case are not in dispute. On June 20, 2007, Claimant was involved in a motor vehicle accident in the course and scope of his employment as a police officer for Employer. As a result of this accident, Claimant sustained injuries to his neck, low back, and both shoulders. Claimant received total disability benefits pursuant to a notice of temporary compensation payable (NTCP) which later converted to a notice of compensation payable (NCP) by operation of law. At the same time, Claimant received salary continuation benefits representing the difference between his total disability benefits and his full salary in accordance with section 1(a) of the Heart and Lung Act.
Pursuant to section 406.1(d)(6) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §717.1(d)(6), if the employer does not file a notice advising the claimant that it is ceasing payments of compensation within the 90-day period that temporary compensation is paid or payable, "the employer shall be deemed to have admitted liability and the [NTCP] shall be converted to a [NCP]."
Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §637(a). This section provides full salary to police officers injured on the job.
At the request of Employer, Claimant underwent independent medical examinations with Gregory S. Maslow, M.D., on February 13 and August 13, 2008. Following the latter examination, Dr. Maslow opined that Claimant's work injuries had resolved and that Claimant was capable of returning to his pre-injury position without restrictions. Dr. Maslow executed an affidavit of recovery to this effect. On September 25, 2008, Employer issued Claimant a notice of ability to return to work and subsequently offered Claimant a return to his pre-injury position as of October 9, 2008. However, Claimant did not return.
On December 1, 2008, Employer filed a petition to suspend Claimant's compensation benefits alleging that Claimant was able to return to unrestricted work and that a specific job offer was made. In this petition, Employer also requested supersedeas. Claimant filed an answer denying the allegations of Employer's petition. The matter was assigned to a WCJ.
On January 5, 2009, the WCJ held a hearing with respect to Employer's request for supersedeas. At this hearing, the WCJ permitted Claimant's counsel to submit his fee agreement with Claimant by mail. By letter dated January 6, 2009, Claimant's counsel forwarded the fee agreement to the WCJ and opposing counsel. This fee agreement reflected a counsel fee of 20% of "whatever sum secured or recovered by adjustment, compromise, settlement, agreement or award...." (Reproduced Record (R.R.) at 8a.) The WCJ did not issue an order regarding Employer's supersedeas request and, hence, it was deemed denied. Shortly thereafter, Employer amended its suspension petition to include a petition to terminate Claimant's compensation benefits based upon his full recovery and ability to return to work without restrictions. Claimant again denied these allegations.
See Section 131.43(a) of the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges ("Unless a supersedeas is granted by a written order [within fourteen days of a supersedeas hearing], it will be deemed denied from the date of filing of the request.").
Following another hearing and the submission of the depositions of Claimant, Claimant's medical expert, and Dr. Maslow, the WCJ issued a decision dated January 20, 2010, denying Employer's suspension/termination petition. Additionally, finding that the fee agreement between Claimant and his counsel was fair and reasonable, the WCJ awarded counsel fees in the amount of 20% of all compensation benefits payable, "retroactive to January 5, 2009, the date of the Supersedeas denial." (WCJ's Decision at 5; R.R. at 28a.)
Employer appealed to the Board. Employer did not challenge the WCJ's denial of its suspension/termination petition or its obligation to remit a 20% fee to Claimant's counsel in accordance with the fee agreement as of January 20, 2010, the date of the WCJ's decision. Instead, Employer only challenged its obligation to remit this 20% fee retroactive to January 5, 2009. Employer argued that the WCJ lacked the authority to provide for a retroactive award of counsel fees on compensation that had already been paid to Claimant.
The Board ultimately affirmed the WCJ's decision, but modified the same "to reflect the approval of a 20% counsel fee from January 20, 2010 and ongoing only. . . ." (Board's decision at 5.) The Board began its discussion by citing section 442 of the Act, which addresses counsel fees and provides as follows:
All counsel fees, agreed upon by claimant and his attorneys, for services performed in matters before any workers' compensation judge or the board, whether or not allowed as part of a judgment, shall be approved by the workers' compensation judge or board as the case may be, providing the counsel fees do not exceed twenty per centum of the amount awarded.77 P.S. §998.
In cases where the efforts of claimant's counsel produce a result favorable to the claimant but where no immediate award of compensation is made, such as in cases of termination or suspension, the hearing official shall allow or award reasonable counsel fees, as agreed upon by claimant and his attorneys, without regard to any per centum. In the case of compromise and release settlement agreements, no counsel fees shall exceed twenty per centum of the workers' compensation settlement amount.
The Board noted that while the WCJ held a supersedeas hearing on January 5, 2009, the WCJ did not rule on the supersedeas request at that hearing or at any point thereafter. Instead, as the Board noted, the supersedeas request was subsequently deemed denied pursuant to section 131.43(a) of the Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges. The Board further noted that Claimant's counsel did not submit his fee agreement at the supersedeas hearing, let alone receive approval of the same. Rather, the WCJ did not actually approve the fee agreement until the date of her decision, i.e., January 20, 2010. Citing City of Philadelphia v. Workers' Compensation Appeal Board (Ford-Tilghman), 996 A.2d 569 (Pa. Cmwlth. 2010), appeal denied, 610 Pa. 611, 20 A.3d 1213 (2011), the Board concluded that Claimant's counsel was not entitled to his 20% fee until that time.
On appeal to this Court, Claimant argues that the Board erred in concluding that the WCJ lacked authority to award counsel fees on all compensation benefits payable where the fee agreement was approved in accordance with section 442 of the Act. We disagree.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
We agree with the Board that our prior decision in Ford-Tilghman is dispositive. In that case, the claimant sustained an injury on January 4, 2006, in the course and scope of her employment with the City of Philadelphia (City), which was self-insured. The City issued an NCP acknowledging this injury, but noted that no workers' compensation benefits were to be paid because the claimant continued to receive her full salary under the Heart and Lung Act. In February 2007, the City filed a petition seeking to terminate the claimant's workers' compensation benefits. The claimant obtained counsel and successfully defended against the City's petition. The WCJ ordered that 20% of the claimant's benefits be deducted and paid directly to her counsel as a fee.
The claimant's exact position with the City is not discussed in the opinion. --------
The City appealed, arguing that the claimant was not entitled to counsel fees because she was not receiving workers' compensation benefits while she was paid Heart and Lung Act benefits, but the Board affirmed. In its decision, the Board noted that a claimant may receive workers' compensation benefits and Heart and Lung Act benefits simultaneously, and that, under the circumstances, any workers' compensation payments must be turned over to the employer. The Board held that the claimant's counsel was entitled to the 20% counsel fee for successfully defending against the City's termination petition.
On appeal in Ford-Tilghman, this Court affirmed the Board's decision. We recognized that the Heart and Lung Act does not estop an injured employee from receiving workers' compensation, only from retaining monies collected under both the Act and the Heart and Lung Act. In addition, we noted that in circumstances where the employer is self-insured, it would be futile to require an employer to pay workers' compensation benefits and then require the claimant to remit them back to the employer. We stated that, in such situations, it would be proper for the employer to issue an NCP but refuse to pay benefits.
Next, we recognized that section 442 of the Act provides that the WCJ must approve a contingent fee agreement and that a 20% fee is reasonable per se. We specifically held that "[o]nce the Termination Petition was denied by the WCJ and the fee agreement approved, twenty percent of Claimant's indemnity benefits was no longer payable to Claimant. Rather, twenty percent of Claimant's workers' compensation benefits were payable to counsel." Ford-Tilghman, 996 A.2d at 574. Further, we concluded that the City was required to pay this 20% counsel fee "over and above its liability for Heart and Lung benefits" and we rejected the City's contention that such a payment is tantamount to a penalty or an award of unreasonable contest attorney fees. Id. at 575.
In the present case, the Board likewise concluded that Claimant's counsel's 20% fee was not payable until January 20, 2010, the date of the WCJ's decision denying Employer's suspension/termination petition and expressly approving the fee agreement between Claimant and his counsel. Such a conclusion is consistent with our prior decision in Ford-Tilghman.
Moreover, contrary to Claimant's assertion, in its appeal to the Board, Employer did not contest the award of retroactive counsel fees solely on the basis that such an award represented a finding of unreasonable contest. Rather, Employer challenged the award of counsel fees for the period preceding the WCJ's decision on the merits and approval of the fee agreement. Specifically, Employer alleged that the WCJ's order was "illegal on its face" because "[t]here is no authority to provide for a retroactive award of attorney's fees on compensation which has already been paid to a claimant." (R.R. at 30a.) Employer did not challenge the award of such a fee on all compensation which remains payable subsequent to the WCJ's decision in accordance with section 442 of the Act.
Furthermore, we reject Claimant's contention that because section 442 does not specify a time frame within which a WCJ must approve a contingent fee agreement and because this Court has previously held that section 442 implies that a WCJ must approve an agreement that does not exceed 20%, Piergalski v. Workmen's Compensation Appeal Board (Viviano Macaroni Co.), 621 A.2d 1069 (Pa. Cmwlth. 1993), he is entitled to receive this fee retroactively. This assertion ignores the approval requirement of section 442 and contradicts our holding in Ford-Tilghman.
Accordingly, the order of the Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 25th day of September, 2013, the order of the Workers' Compensation Appeal Board, dated March 20, 2013, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge