Success by agreement entitles construction worker to attorney's fees

In Pennsylvania, when a worker successfully prosecutes a claim, a workers' compensation judge must approve an award of attorney's fees if there is an agreement between the worker and the attorney and the agreement does not exceed 20 percent of the amount awarded.

Case name: Green v. Rezzelle Construction Co., 25 PAWCLR 32 (Pa. W.C.A.B. 2010).

Ruling: The Pennsylvania Workers' Compensation Appeal Board approved the worker's attorney's fees agreement and awarded reimbursement of his costs. The board also remanded for a determination of the litigation costs associated only with the worker's review petition.

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What it means: In Pennsylvania, when a worker successfully prosecutes a claim, a workers' compensation judge must approve an award of attorney's fees if there is an agreement between the worker and the attorney and the agreement does not exceed 20 percent of the amount awarded.

Summary: A construction worker fractured his heel when he fell from a roof on the job. The worker filed a petition to review compensation benefits alleging that there was an incorrect description of injury and that the notice of compensation payable should be amended to include a fracture of the right calcaneous and post-traumatic arthritis of the subtaler joint. The employer issued a supplemental agreement that reinstated the worker's temporary total disability benefits and amended the description of injury as requested by the worker. However, the WCJ dismissed the review petition as moot following the parties' entry into the supplemental agreement, indicating in his order that no attorney's fees or costs were approved or payable. The Pennsylvania Workers' Compensation Appeal Board affirmed the dismissal of the review petition as moot. However, the board found that because the worker was successful in litigating his review petition he was entitled to attorney's fees and an award of costs.

The board explained that under Pennsylvania law, all counsel fees agreed to by the worker and his attorney, whether allowed as part of the judgment, must be approved by the board as long as they do not exceed 20 percent of the award amount. Even though no benefits were awarded and the petition was merely amended as to the work injury description, the worker had an enforceable fee agreement with his attorney for 20 percent of his workers' compensation benefits.

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May 10, 2010

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