IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Lorino, :
Petitioner :
:
v. : No. 1217 C.D. 2019
: Submitted: December 13, 2019
Workers’ Compensation Appeal Board :
(Commonwealth of Pennsylvania), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 19, 2020
Vincent Lorino (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board), dated August 8, 2019. The Board affirmed
the decision of a Workers’ Compensation Judge (WCJ), which denied both the
Commonwealth of Pennsylvania’s (Employer) termination petition (Termination
Petition) and Claimant’s request for attorneys’ fees under Section 440 of the
Workers’ Compensation Act (Act).1 For the reasons set forth below, we affirm the
Board’s order in part, vacate the Board’s order in part, and remand the matter to the
Board for further proceedings consistent with this opinion.
1
Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L. 25,
77 P.S. § 996.
I. BACKGROUND
Claimant worked for Employer as an equipment operator. On
August 22, 2016, Claimant sustained a work-related injury to his low back and left
hip when he slipped on the running board of his work pickup truck and fell
backwards. Employer accepted liability for a low back sprain/tear and a left hip
sprain/tear pursuant to two amended medical-only Notices of Compensation
Payable. Thereafter, on March 10, 2017, Employer filed its Termination Petition,
asserting that Claimant had fully recovered from his work-related injury as of
February 21, 2017.
Claimant testified in opposition to Employer’s Termination Petition at the
hearing held on March 5, 2018. Claimant stated that he has worked for Employer as
an equipment operator for almost eleven years. (Reproduced Record (R.R.)
at 67a-68a.) In that position, Claimant is responsible for operating heavy machinery,
such as a dump truck, a front-end loader, a skid steer, an excavator, plowing
equipment, and a jackhammer. (Id. at 68a-69a.) In August 2014, Claimant sustained
a work-related injury to his low back with right leg radiculopathy. (Id. at 77a.)
Although he eventually returned to work at full capacity, he no longer operates the
heavy machinery on a daily basis. (Id. at 70a, 77a-78a.) Rather, he works on an
herbicide crew, planning routes or driving the pickup truck that is used to spray the
weeds located along state highways and roads, or performs plowing activities.
(Id. at 70a-71a, 91a.)
Claimant testified further that, on August 22, 2016, he was stepping out of his
pickup truck onto the running board when he slipped and fell backwards, causing
him to experience pain in his groin area. (Id. at 71a-72a.) Claimant initially treated
for his injury at Patient First, where the medical professionals prescribed physical
2
therapy and referred Claimant to an orthopedic doctor. (Id. at 72a-74a.) Because he
was not satisfied with the treatment and recommendations provided to him by the
orthopedic doctor, however, Claimant sought a second opinion from Shivani Dua,
M.D., on a referral from his family doctor. (Id. at 74a-75a.) In order to treat
Claimant’s injury, Dr. Dua performed epidural steroid injections on Claimant’s
back. (Id. at 75a.) Claimant explained that each injection works for a few months,
but then the shooting pain in his left leg slowly starts to return. (Id. at 75a-77a.)
Claimant indicated that he received his most recent injection in January or
February of 2017, approximately two to three weeks before he underwent an
independent medical examination (IME) by Lawrence Barr, D.O. (Id. at 80a-81a.)
Claimant explained that, because of the injection, his low back pain had improved
at the time of the IME. (Id. at 82a.)
Claimant testified further that he did not miss any work in connection with his
August 22, 2016 work-related injury. (Id. at 73a.) Claimant also indicated that he
does not believe that he has fully recovered from his August 22, 2016 work-related
injury, because he continues to experience pain in his low back and radiating pain
and numbness in his left leg. (Id. at 82a-83a.) He explained that, in order to manage
his low back and left leg pain, he continues to: (1) treat with Dr. Dua; (2) take
over-the-counter pain medication when his back becomes agitated; (3) perform
at-home physical therapy exercises; and (4) use heat/cold therapy when his back is
throbbing after standing for long periods of time at work. (Id. at 81a-84a, 87a-88a.)
Claimant also testified that he entered into a fee agreement with his attorney,
wherein he agreed to pay his attorney $400 per hour to represent him in connection
with this matter. (Id. at 88a-89a.) Claimant understood that, because he was not
receiving indemnity benefits, he was unable to pay his attorney through a traditional
3
contingent fee arrangement. (Id. at 88a.) Claimant also indicated that he did not
have any legal training or education, he was not familiar with the Act, and he did not
believe that he could represent himself in this matter. (Id. at 89a-90a.)
Claimant also presented two medical reports prepared by Dr. Dua, his treating
physician. In her reports, Dr. Dua indicated that she first treated Claimant on
January 11, 2017, for complaints of “low back pain and left lower extremity
radiculopathy with associated symptoms of numbness and tingling and debilitating
pain.” (Id. at 109a.) Based upon the results of her physical examination and an MRI
of Claimant’s lumbar spine, Dr. Dua performed a lumbar interlaminar epidural
steroid injection in Claimant’s low back at the L4-5 level. (Id. at 107a, 109a.)
Dr. Dua also prescribed physical therapy in order to improve Claimant’s range of
motion, strength, and pain symptoms. (Id.) Dr. Dua noted that, following the
epidural steroid injection and physical therapy, Claimant reported “significant
analgesic benefit with greater than 80% relief.” (Id. at 109a.) Claimant returned to
Dr. Dua on April 19, 2017. (Id.) At that time, Claimant reported a progressive return
of his pain symptoms. (Id.) As a result, Dr. Dua performed a second epidural steroid
injection on Claimant’s lumber spine, which resulted in a positive and significant
response in Claimant’s symptoms. (Id.) Claimant again returned to Dr. Dua on
February 5, 2018, and reported “pain symptoms in the same distribution and location
as his original pain.” (Id.) Dr. Dua indicated that, as long as Claimant continues to
obtain significant benefit from the epidural steroid injections—i.e., greater
than 50% relief for over six weeks—it is reasonable to continue with this treatment.
(Id.) If, however, Claimant reports that the epidural steroid injections are no longer
effective, Claimant may require orthopedic or neurosurgical evaluation/intervention.
(Id. at 107a, 109a.)
4
In support of its Termination Petition, Employer presented the deposition
testimony of Lawrence Barr, D.O., a board-certified orthopedic surgeon, who
performed an IME of Claimant on February 21, 2017. (Id. at 31a.) After obtaining
a history, performing a physical examination, and reviewing Claimant’s medical
records and the results of Claimant’s diagnostic studies, Dr. Barr opined with a
reasonable degree of medical certainty that Claimant had fully recovered from his
August 22, 2016 work-related low back sprain and left hip sprain and that Claimant
did not require any further treatment in connection therewith. (Id. at 34a-35a.) As
a result, Dr. Barr issued a Physician’s Affidavit of Recovery, specifically indicating
that Claimant had fully recovered from his August 22, 2016 work-related injury as
of February 21, 2017. (Id. at 36a, 147a.)
Dr. Barr further indicated that, in his opinion, the injections that Claimant was
receiving in his low back were not related to Claimant’s August 22, 2016
work-related injury. (Id. at 47a.) Rather, the injections were to treat the chronic
problems that Claimant was experiencing relative to his degenerative disc disease, a
condition that predated Claimant’s August 22, 2016 work-related low back sprain.
(Id. at 37a, 41a, 47a.) Dr. Barr connected Claimant’s current condition—i.e.,
symptoms that change based on weather, injections, and activity level—to his
degenerative disc disease and indicated that a low back sprain typically resolves after
six weeks. (Id. at 41a.) When questioned about the use of the terms “medical
plateau” and “maximum medical improvement” in his report, Dr. Barr explained that
those terms are simply his indication that Claimant has “healed from the injury from
this occurrence and that no other treatment was indicated as it relates to this
occurrence and the patient.” (Id. at 41a, 47a.) Dr. Barr also explained that medical
5
professionals use the phrases “a reasonable degree of medical certainty” and “a
reasonable degree of medical probability” interchangeably. (Id. at 35a-36a.)
By decision and order dated July 10, 2018, the WCJ denied Employer’s
Termination Petition. In so doing, the WCJ found Dr. Dua’s opinions to be more
credible than Dr. Barr’s opinions and concluded that Employer did not meet its
burden of proving that Claimant had fully recovered from his August 22, 2016
work-related injury. The WCJ also denied Claimant’s request for attorneys’ fees
under Section 440 of the Act, reasoning that:
Pursuant to Section 440 of the [Act,] Claimant’s
attorney[s’] fees shall be paid by Employer unless
Employer establishes a reasonable basis for its contest. As
Dr. Barr’s testimony provided an opinion of full recovery
within a reasonable degree of medical certainty, Employer
has established a reasonable contest on its Termination
Petition. Although Claimant argues that Section 440
counsel fees may also be assessed against Employer in
cases where a reasonable contest has been established, no
case law has been cited in which such facts have occurred.
Accordingly, Section 440 attorney[s’] fees shall not be
assessed against Employer.
(WCJ’s Decision at 7.) Lastly, the WCJ approved the payment of reasonable
attorneys’ fees from Claimant to his attorney in the amount of $2,000, noting that:
Claimant’s counsel has presented an Affidavit of Quantum
Meruit Time [(Affidavit)] documenting 35.1 hours of
work at a professional fee of $400 per hour. Based upon
the length and difficulty of the litigation, the experience of
counsel, and the fees typical [sic] charged in the
geographical area I find that a total fee of $2,000 is
reasonable.
(Id.) Claimant and Employer cross-appealed the WCJ’s decision to the Board, which
affirmed. Claimant then petitioned this Court for review.
6
II. ARGUMENTS ON APPEAL
On appeal,2 Claimant argues that the Board erred by: (1) misinterpreting
Section 440 of the Act to always require that an employer engage in an unreasonable
contest before attorneys’ fees may be awarded to a successful claimant; (2) affirming
the WCJ’s conclusion that Employer had a reasonable basis to support its
Termination Petition; and (3) affirming the WCJ’s finding that $2,000 for attorneys’
fees—rather than the $14,040 in attorneys’ fees documented in the Affidavit—was
reasonable.3
III. DISCUSSION
A. Attorneys’ Fees Under Section 440 of the Act Generally
Claimant argues that the Board erred by misinterpreting Section 440 of the
Act to always require that an employer engage in an unreasonable contest before
attorneys’ fees may be awarded to a successful claimant. More specifically,
Claimant contends that, if the General Assembly intended to require that attorneys’
fees be excluded under Section 440 in every case in which the employer presents a
reasonable contest, the General Assembly would have used the word “shall” rather
than the word “may.” Claimant contends further that the only way in which this
Court can give effect to the General Assembly’s use of the word “may” is to
acknowledge that there are situations, such as the one presented in this case—i.e., a
claimant who is required to defend against a termination petition in a medical-only
case when the claimant is unable to pay his attorney through a traditional contingent
2
Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence, and whether constitutional rights
were violated. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.),
954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).
3
We have reordered Claimant’s arguments for the purpose of discussion.
7
fee arrangement given that he is not collecting indemnity benefits—where attorneys’
fees must be awarded even when the employer presents a reasonable contest. While
Claimant recognizes both that it “has become the norm to exclude [an] award of
[attorneys’] fees in every case where the [employer] presents a reasonable contest”
and that no court has previously considered this statutory construction argument,
Claimant suggests that, in light of the Pennsylvania Supreme Court’s decision in
Protz v. Workers’ Compensation Appeal Board (Derry Area School District),
161 A.3d 827 (Pa. 2017),4 this Court can now consider the argument and give the
statutory language set forth in Section 440 its intended effect.
In response, Employer argues that this Court has already considered the issue
of whether attorneys’ fees should be automatically assessed against an employer
under Section 440 of the Act even when the employer presents a reasonable contest
in Mason v. Workmen’s Compensation Appeal Board (Wheeling-Pittsburgh Steel
Corporation), 600 A.2d 241 (Pa. Cmwlth. 1991), appeal denied, 605 A.2d 335
(Pa. 1992), and concluded that the legislature intended for an exception to be created
to exclude an award of attorneys’ fees whenever an employer establishes a
reasonable basis for its contest. Employer further contends that, in making his
statutory construction argument, Claimant ignores the fact that the Supreme Court
4
In Protz, the Supreme Court considered the issue of whether former Section 306(a.2) of
the Act, 77 P.S. § 511.2, added by the Act of June 24, 1996, P.L. 350, repealed by the Act of
October 24, 2018, P.L. 714, which permitted employers to demand that a claimant undergo an
impairment rating evaluation, violated the non-delegation doctrine of Article II, Section 1 of the
Pennsylvania Constitution, because it required “physicians to apply the methodology set forth in
‘the most recent edition’ of the American Medical Association (AMA) Guides to Evaluation of
Permanent Impairment” (Guides). Protz, 161 A.3d at 830. The Supreme Court held that former
Section 306(a.2) of the Act violated the non-delegation doctrine, because it “incorporate[d], sight
unseen, subsequent modifications to [the General Assembly’s] standards[—i.e., the most recent
edition of the AMA Guides—]without also providing adequate criteria to guide and restrain the
exercise of the delegated authority.” Protz, 161 A.3d at 839.
8
already addressed the legislative intent of Section 440 in Weidner v. Workmen’s
Compensation Appeal Board, 442 A.2d 242 (Pa. 1982) (Weidner II), and concluded
that Section 440 demonstrates a legislative intent to protect claimants against
unreasonable contests. Employer suggests that, based upon this precedent, “[i]t is
clear that, once an employer establishes a reasonable contest, the intent to protect
claimants from an unreasonable one is satisfied” and “the inquiry as to whether fees
are payable by an employer” has ended. (Employer’s Br. at 23.) In sum, Employer
contends that an employer’s “challenge to ongoing medical care, if undertaken with
a reasonable basis to do so, must be allowed . . . without facing a proposition that
such contest is ‘per se unreasonable’ solely because the claimant is not receiving
indemnity benefits from which attorney[s’] fees can be deducted.” (Employer’s
Br. at 26.)
In his reply brief, Claimant suggests that, contrary to Employer’s arguments,
this case presents an issue of first impression because the “identical” argument
presented in this case—i.e., involving a request for attorneys’ fees under
Section 440 of the Act in a medical-only situation—has not been considered by this
Court or any other Pennsylvania court. Claimant contends that this Court’s decision
in Mason is readily distinguishable from the facts of this case because: (1) unlike in
this case, the claimant in Mason was receiving indemnity benefits and was able to
offer a prospective attorney a contingent fee arrangement; and (2) Section 440 of the
Act has been amended since this Court’s decision in Mason. Claimant contends
further that the proper interpretation of Section 440—which he suggests is to permit
a successful medical-only claimant to recover attorneys’ fees from an employer even
if the employer has presented a reasonable contest—would level the economic
playing field between the employer and the claimant in medical-only cases by
9
effectively resulting in a “contingent fee” to be paid by an employer upon a
claimant’s success. Claimant argues that any other interpretation of Section 440
places a medical-only claimant in a situation where the claimant has to choose
between representing himself and potentially losing his medical benefits or hiring an
attorney at a substantial cost.
Section 440 of the Act provides, in relevant part:
In any contested case where the insurer has contested
liability in whole or in part, including contested cases
involving petitions to terminate, reinstate, increase, reduce
or otherwise modify compensation awards, agreements or
other payment arrangements or to set aside final receipts,
the employe or his dependent, as the case may be, in whose
favor the matter at issue has been finally determined in
whole or in part shall be awarded, in addition to the award
for compensation, a reasonable sum for costs incurred for
attorney[s’] fee[s], witnesses, necessary medical
examination, and the value of unreimbursed lost time to
attend the proceedings: Provided, That cost for
attorney[s’] fees may be excluded when a reasonable basis
for the contest has been established by the employer or the
insurer.
With respect to an award of attorneys’ fees under Section 440 of the Act, the
Supreme Court has indicated that Section 440 demonstrates “a legislative intent of
protecting claimants against unreasonable contests of a claimant’s initial or
continuing right to the benefits of the [A]ct, including the benefit of a suspension,
where a monetary award is not possible.” Weidner II, 442 A.2d at 244 (emphasis
added). Even prior to the Supreme Court’s decision in Weidner II, however, this
Court had already recognized that Section 440 “is intended to deter unreasonable
contests of workers’ claims and to ensure that successful claimants receive
compensation undiminished by [the] costs of litigation.” Poli v. Workmen’s Comp.
Appeal Bd., 384 A.2d 596, 597-98 (Pa. Cmwlth. 1978). In line with this legislative
10
intent and despite the General Assembly’s use of the word “may,” this Court has
always interpreted Section 440 to mean that “attorney[s’] fees shall be awarded
unless a reasonable basis for the employer’s contest has been established; or
otherwise expressed, the award of attorney[s’] fees is the rule and their exclusion is
the exception to be applied in cases where the record establishes that the employer’s
. . . contest is reasonably based.” Weidner v. Workmen’s Comp. Appeal Bd.,
332 A.2d 885, 887 (Pa. Cmwlth. 1975) (emphasis added); see New Alexandria
Borough v. Workers’ Comp. Appeal Bd. (Tenerovich), 157 A.3d 549, 557-58
(Pa. Cmwlth. 2017); Thompson v. Workers’ Comp. Appeal Bd. (Cinema Ctr.),
981 A.2d 968, 972 (Pa. Cmwlth. 2009); Yeagle v. Workmen’s Comp. Appeal Bd.
(Stone Container Corp.), 630 A.2d 558, 559 (Pa. Cmwlth. 1993).
In fact, in Mason, this Court specifically addressed the issue of “whether
attorney[s’] fees should be automatically assessed against [an employer] under
Section 440 of [t]he [Act] . . . even though [the employer] had a reasonable basis to
contest a claim.” Mason, 600 A.2d at 242. In Mason, the employer sought a
modification of the claimant’s benefits. Id. at 243. In support thereof, the employer
offered the opinion of the claimant’s former treating physician, who opined that the
claimant was capable of performing a light-duty janitorial/cleaning position. Id. The
referee5 rejected that medical opinion in favor of the opinion of the claimant’s
physician, who indicated that, if the claimant were to perform the janitorial/cleaning
position, his work-related condition would worsen. Id. Based on this credibility
determination, the referee concluded that the claimant’s work-related disability had
not changed. Id. The referee further concluded that the employer failed to establish
5
Prior to the 1993 amendments to the Act, WCJs were referred to as referees. See King v.
Workmen’s Comp. Appeal Bd. (K-Mart Corp.), 664 A.2d 1087, 1088 n.1 (Pa. Cmwlth. 1995),
rev’d, 700 A.2d 431 (Pa. 1997).
11
a reasonable basis for its modification petition and, pursuant to Section 440 of the
Act, was liable to pay the claimant’s reasonable attorneys’ fees. Id. The Board
concluded that the employer presented a reasonable basis to support its modification
petition and reversed the referee’s award of attorneys’ fees. Id.
On appeal to this Court, we stated:
[The c]laimant contends that since [the e]mployer
failed to sustain its burden of proof to support its
modification petition . . . , the referee was correct in
concluding that [the e]mployer failed to establish a
reasonable basis for contest. According to [the c]laimant,
under Section 440, paragraph two, [the e]mployer is not
entitled to a defense of reasonable contest to avoid liability
for [the c]laimant’s attorney[s’] fees. [The claimant’s]
theory is that paragraph two is designed to avoid
penalizing a claimant who prevails in modification
proceedings whereby benefits would otherwise be reduced
by twenty percent if counsel fees were deducted from the
claimant’s benefits. [The c]laimant advances no support
for his theory other than presenting humanitarian
arguments and making reference to a dissent in Farquhar
v. Workmen’s Compensation Appeal Board (Corning
Glass Works), . . . 528 A.2d 580 ([Pa.] 1987), in which the
dissenting justice stated that Section 440 seems to provide
that even where a reasonable contest is established, a
successful claimant is still entitled to attorney[s’] fees.
That is not, however, the holding of the majority opinion
in Farquhar nor of any cases decided within this
Commonwealth interpreting Section 440’s exception to
[the] assessment of attorney[s’] fees.
[The e]mployer, on the other hand, argues that it
established a case for modification of benefits . . . .
Nonetheless, [the e]mployer asserts that the
reasonableness of its contest should not be based upon the
lack of its success in pursuing modification but rather upon
whether the employer has an objective basis for its actions
. . . . Moreover, Section 440 of the Act does not provide
that attorney[s’] fees must be automatically assessed
against [the e]mployer inasmuch as paragraph one is
12
controlling as to when an assessment may be made. [The
e]mployer’s position is supported by case law.
Id. at 243-44.6 After reviewing case law addressing what it means for the employer
to present a reasonable contest and applying such case law to the facts of the case,
we concluded that the employer presented a reasonable basis to support its
modification petition, and we affirmed the Board’s decision. Id. at 244. In so doing,
we reasoned:
[I]n construing Section 440 [of the Act], it is reasonable to
conclude [that] the legislature intended that paragraphs
one and two are to be read together. Hence, the caveat
included in paragraph two that [the] “claimant shall be
entitled to an award of reasonable costs as hereinabove set
forth,” must be presumed to refer to the exception to
assessment of costs set forth in paragraph one—that is,
attorney[s’] fees may be excluded when a reasonable basis
for the contest has been established. Any other
interpretation would be inconsistent with legislative
intent.
Id. Although not explicitly set forth in our decision, given the procedural posture of
the case and our holding—i.e., we affirmed both the Board’s conclusion that the
employer presented a reasonable basis to support its modification petition and the
Board’s reversal of attorneys’ fees—we ultimately concluded that attorneys’ fees are
not automatically awarded to a successful claimant under Section 440 when the
employer has presented a reasonable contest. Id. at 242-44.
Here, Claimant asks us to depart from this long-standing precedent and permit
him and other similarly situated claimants—i.e., claimants who are forced to defend
against a termination petition involving only medical benefits (no wage loss) and,
6
While we recognize that Mason was decided under a prior version of Section 440 of the
Act, upon comparison of the current version of Section 440 to the version of Section 440 in effect
at the time this Court decided Mason, we cannot find any differences that would make our holding
in Mason inapplicable to the present matter.
13
therefore, are not able to compensate their attorneys under a traditional contingent
fee arrangement—to recover attorneys’ fees under Section 440 of the Act even when
the employer has presented a reasonable contest. While we are not blind to the fact
that this case is factually distinguishable from Mason because the claimant in Mason
was receiving indemnity benefits, the factual circumstances of a particular claimant
do not drive a court’s construction of a statute. That Claimant has no wage loss and
thus cannot compensate his counsel for this discrete matter through a contingent fee
arrangement does not persuade us that our prior interpretation of Section 440 of the
Act is incorrect. As a result, we cannot conclude that the Board erred by interpreting
Section 440 of the Act to preclude an award of attorneys’ fees to a prevailing
claimant where the employer establishes a reasonable basis for the contest.
B. Reasonable Basis to Support Termination Petition
Claimant argues that the Board erred by affirming the WCJ’s finding that
Employer had a reasonable basis to support its Termination Petition, because, at the
time that it filed its Termination Petition, Employer did not possess unequivocal
prima facie evidence that Claimant had fully recovered from his August 22, 2016
work-related injury. More specifically, Claimant contends that the best evidence
Employer had in its possession at the time it filed its Termination Petition was
Dr. Barr’s report, and, in his report, Dr. Barr did not opine with a reasonable degree
of medical certainty that Claimant had fully recovered from his August 22, 2016
work-related injury; rather, Dr. Barr opined with a reasonable degree of medical
probability that Claimant had reached maximum medical improvement. Claimant
further contends that, given the factual circumstances surrounding this case—i.e.,
that Employer sent Claimant for an IME less than six months after he sustained his
work-related injury, that Employer did not provide Dr. Barr with Claimant’s relevant
14
treatment records, and that Employer knew Claimant would not be able to hire an
attorney due to the fact he was not receiving indemnity benefits—Employer filed its
Termination Petition not to resolve a genuinely disputed issue but to harass
Claimant.
In response, Employer argues that the WCJ properly found that Employer
presented a reasonable contest in connection with the filing of its Termination
Petition. More specifically, Employer contends that its contest in this matter was
reasonable because the parties’ medical experts, Dr. Barr and Dr. Dua, expressed
differing opinions regarding whether Claimant had fully recovered from his
August 22, 2016 work-related injury. Employer further contends that Dr. Barr’s
report provided Employer with a reasonable basis to file its Termination Petition
because, in such report, Dr. Barr clearly opined that Claimant “‘ha[d] recovered from
[his] low back strain.’” (Employer’s Br. at 17 (citing R.R. at 145a).) Employer
suggests that, by arguing to the contrary, Claimant: (1) fails to acknowledge that, at
the same time he issued his report, Dr. Barr also issued a Physician’s Affidavit of
Recovery; and (2) focuses on only a few select phrases of Dr. Barr’s report and
“ignores the longstanding disinclination to rely on ‘magic words’”—i.e., “reasonable
degree of medical certainty” and “fully recovered.” (Employer’s Br. at 16.)
Employer also contends that, while Claimant argues Employer filed its Termination
Petition to harass Claimant rather than to resolve a genuinely disputed issue,
Claimant has failed “to indicate in what manner Claimant was ‘harassed’ other than
to have to defend his entitlement to medical benefits from an allegation of full
recovery.” (Employer’s Br. at 19.)
“Whether an [e]mployer’s contest of liability is reasonable is a question of
law reviewable by this Court.” Capper v. Workers’ Comp. Appeal Bd. (ABF Freight
15
Sys., Inc.), 826 A.2d 46, 50-51 (Pa. Cmwlth. 2003). “A reasonable contest may be
established where medical evidence is conflicting or is susceptible to contrary
inferences and where there is an absence of evidence that the employer’s contest was
frivolous or filed for purposes of harassment.” Mason, 600 A.2d at 244. “The
employer [bears] the burden of presenting sufficient evidence to establish a
reasonable basis for its contest.” Thompson, 981 A.2d at 973. “[A]n employer[,
however,] is not held to the standard of proving its evidence is legally sufficient in
order to establish reasonableness.” Capper, 826 A.2d at 51. In other words, the
employer need not be successful on the merits to establish a reasonable contest.
Here, Dr. Barr opined with a reasonable degree of medical certainty that
Claimant had fully recovered from and did not require any further treatment in
connection with his August 22, 2016 work-related low back sprain and left hip
sprain. Although Employer was not successful on the merits of its Termination
Petition, Dr. Barr’s opinion provided Employer with a reasonable basis to support
its Termination Petition. Claimant nevertheless suggests that Employer did not
possess sufficient evidence to support its Termination Petition at the time that it was
filed because, in his report, Dr. Barr opined with a reasonable degree of medical
probability, rather than a reasonable degree of medical certainty, that Claimant had
reached maximum medical improvement, not that Claimant had fully recovered
from his August 22, 2016 work-related injury. We disagree.
First, Dr. Barr specifically indicated in his report that Claimant “appears [to
have] recovered from this low back sprain” and that “[n]o further treatment [was]
indicated.” (R.R. at 144a-45a.) Second, Dr. Barr included with his report a
Physician’s Affidavit of Recovery, which specifically indicated that Claimant had
fully recovered from his August 22, 2016 work-related injury as of
16
February 21, 2017. (Id. at 147a.) Third, while Dr. Barr may not have used the
specific words “fully recovered” in his report and may have indicated that his
opinions were held “with a reasonable degree of medical probability” rather than a
“reasonable degree of medical certainty,” these facts are not dispositive. During his
deposition, Dr. Barr explained that, in the medical community, the phrases
“reasonable degree of medical probability” and “reasonable degree of medical
certainty” are used interchangeably. We have also previously held that “medical
experts need not utilize magic words, so long as the expert’s testimony[—or in this
case the expert’s report—]taken as a whole fairly supports the proposition at issue.”
Hoffmaster v. Workers’ Comp. Appeal Bd. (Senco Prods., Inc.), 721 A.2d 1152,
1156 (Pa. Cmwlth. 1998). In addition, given that Employer offered Dr. Barr’s
opinion of full recovery to support its Termination Petition, we do not see, and
Claimant has not identified, how Employer could have filed its Termination Petition
solely with the intent to harass Claimant. For all of these reasons, we cannot
conclude that the Board erred by affirming the WCJ’s finding that Employer had a
reasonable basis to support its Termination Petition.
C. WCJ’s Approval of Reasonable Attorneys’ Fees
Claimant argues that the Board erred by affirming the WCJ’s finding that
$2,000 for attorneys’ fees—rather than the $14,040 documented in the Affidavit—
were reasonable. More specifically, Claimant contends that, in order to have
reduced the amount of attorneys’ fees requested in the Affidavit to $2,000, the WCJ
would have had to find that Claimant’s counsel spent a total of only 5 hours on this
case. Claimant suggests that this is physically impossible given that: (1) Claimant’s
counsel attended five hearings and Dr. Barr’s deposition, prepared for the hearings
17
and deposition, and drafted documents; and (2) travel time to and from the hearings
alone exceeded five hours.7
Section 442 of the Act, 77 P.S. § 998, added by the Act of February 8, 1972,
P.L. 25, requires workers’ compensation judges to approve all counsel fees agreed
upon between a claimant and his attorney. Its purpose is to “protect[] claimants
against unreasonable fees charged and imposed on them by their attorneys under
their own improvident fee agreements.” Weidner II, 442 A.2d at 244. It provides,
in relevant part:
All counsel fees, agreed upon by claimant and his
attorneys, for services performed in matters before any
workers’ compensation judge or the board . . . 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.
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.
77 P.S. § 998.
Although the WCJ did not specifically reference Section 442 of the Act in his
decision, it is apparent to this Court that the WCJ made a finding that $2,000 in
attorneys’ fees was a reasonable fee for Claimant’s attorney to charge to represent
Claimant in this matter in accordance with his obligations under Section 442 of the
7
Claimant further argues that he is entitled to an award of attorneys’ fees not only for the
time expended by his attorney before the WCJ but also for any time expended in pursing the
appeals before the Board and this Court. Given our disposition above—i.e., that Claimant is not
entitled to an award of attorneys’ fees under Section 440 of the Act—we need not address this
argument.
18
Act. In making this finding, however, the WCJ did not provide any explanation as
to how he determined that $2,000 in attorneys’ fees was reasonable. In other words,
the WCJ did not set forth what he believed to be a reasonable hourly rate or a
reasonable number of hours for Claimant’s attorney to have spent in representing
Claimant in this matter. For these reasons, we are unable to determine whether the
WCJ committed an error of law or abused his discretion in finding that attorneys’
fees in the amount of $2,000—rather than the $14,040 documented in the
Affidavit—was reasonable. We must, therefore, vacate those portions of the WCJ’s
and Board’s decisions finding that $2,000 was a reasonable fee for Claimant’s
counsel to have charged Claimant to represent him in this matter and remand the
matter to the Board with instructions to remand the matter to the WCJ for the
issuance of new findings of fact and conclusions of law consistent with this opinion.
IV. CONCLUSION
Accordingly, we affirm, in part, and vacate in part, the Board’s order, and we
remand the matter to the Board for further proceedings consistent with this opinion.
P. KEVIN BROBSON, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Lorino, :
Petitioner:
:
v. : No. 1217 C.D. 2019
:
Workers’ Compensation Appeal Board :
(Commonwealth of Pennsylvania), :
Respondent :
ORDER
AND NOW, this 19th day of August, 2020, the order of the Workers’
Compensation Appeal Board (Board) is hereby AFFIRMED, in part, and
VACATED, in part, and the matter is REMANDED to the Board for further
proceedings consistent with this opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge