Lorino v. WCAB (Commonwealth of PA), No. 8 EAP 2021 (Decided 12/22/2021)
On December 22, 2021, the Supreme Court of PA issued a decision that will enable many injured workers to obtain counsel to protect their rights – at the insurance company’s cost. Of note, Mark R. Schmidt was a speaker at a seminar sponsored by the Pennsylvania Bar Institute on June 24, 2021, addressing this exact issue [Tough Problems in Workers’ Compensation] – and predicted the outcome of the case [Lorino v. WCAB (Commonwealth of PA)], which was awaiting the Court’s decision at that time.
The Pennsylvania Workers’ Compensation Act states that a judge SHALL award claimant’s attorney a reasonable fee, to be paid by the insurance company, whenever the claimant is successful in litigation involving their benefits. The law states that a judge MAY direct the fee to be charged against the claimant’s benefits if the insurance company proves there was a reasonable basis for the insurance company’s contest. Over the past several decades, Workers’ Compensation Judges and the appellate courts have eroded the ability of some injured workers to even find a lawyer willing to represent them, because it was generally (always?) determined that any reasonable contest precluded an award of counsel fees. If the insurance company presented ANY medical evidence, no matter how unbelievable; or raised any legal issue requiring the judge’s interpretation, a “reasonable contest” has been found, and the only source for a lawyer’s fee was the claimant’s wage loss benefits. If the only benefits being paid were for medical treatment, no fee was likely to available – possibly ever. Many law firms would not accept cases where no fee was likely, and they may be required to fight challenge after challenge. [Schmidt, Kirifides & Rassias have always been willing to represent these injured workers.]
The Lorino case presented this exact issue to the Court. The claimant lost no time from work, and never received wage loss benefits. The defendant was required to pay for his medical treatment. The doctor hired by the insurance company said claimant was fully recovered. The judge found claimant and his doctor more believable, and denied the Petition to Terminate the medical benefits. Claimant’s counsel requested a fee – to be paid by defendant, even though there was a reasonable contest created by the conflicting medical evidence. The Judge did award a fee (but reduced the amount sought). Both sides appealed. The Workers’ Compensation Appeal Board upheld the denial of the termination – but determined that there was no basis for a lawyer’s fee to be paid by defendant where a reasonable contest has been established. Further appeals were filed. The Commonwealth Court agreed with the WCAB, stating that a lawyer’s fee can not be charged to the insurance company if they have established a reasonable basis for their contest. In fact, the Commonwealth Court said that the word “MAY” has always been interpreted to mean the same thing as “SHALL” – in direct conflict with numerous court decisions on other workers’ compensation issues clearly identifying a difference between the two words.
With credit to the claimant’s lawyer and the Pennsylvania Association for Justice (which filed a supporting brief), they convinced the Supreme Court of Pennsylvania that the words “SHALL” and “MAY” are completely different. When a law is written using both words, the General Assembly understands the plain meaning, and intended to use different words. Further, the goal of the Workers’ Compensation Act is to protect the rights of injured workers, and all claimants must have the ability to find a lawyer willing to represent them. In short, a reasonable contest MAY preclude an award of a lawyer’s fee to be paid by the insurance company – but in proper circumstances, MAY be ordered to be paid by the defendant.
[The Commonwealth Court did not allow the Judge to reduce the fee sought without evidence and an explanation of the proper fee payable. Due to the case being Remanded for an assessment of the proper counsel fee, it is yet to be decided how such fees are determined.].
Every Injured Worker NEEDS a lawyer to protect their rights. The Workers’ Compensation laws are complicated and constantly subject to changes by new court decisions. You need a lawyer who handles ONLY work injury cases. Every Workers’ Compensation attorney at Schmidt, Kirifides & Rassias are Certified Workers’ Compensation Specialists, having satisfied the strict requirements of the Supreme Court and PA Bar Association. For a free consultation, contact us at 610-601-5399 or reach out online.