Bandos v. Workmen's Compensation Appeal Board

Commonwealth Court of Pennsylvania

Bandos v. Workmen's Compensation Appeal Board

611 A.2d 374, 149 Pa. Commw. 199, 1992 Pa. Commw. LEXIS 475

CourtCommonwealth Court of Pennsylvania

DecidedJuly 10, 1992

Docket1410 C.D. 1991

StatusPublished

Cited by7 cases

This text of 611 A.2d 374 (Bandos v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bandos v. Workmen's Compensation Appeal Board, 611 A.2d 374, 149 Pa. Commw. 199, 1992 Pa. Commw. LEXIS 475 (Pa. Ct. App. 1992).

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Opinions

KELLEY, Judge.

Raymond Bandos (claimant) suffered a work-related injury on December 21, 1983. The injury occurred when claimant was involved in an automobile accident while driving on company business for Pennbrook Dairies (employer). Claimant missed work from December 22, 1983 through January 2, 1984. He returned to work at reduced activity from January 3, 1984 through May 25, 1984, and did not work after May 25, 1984.

Claimant filed a claim petition on October 7, 1985, and presented medical testimony in support of the petition. Employer did not present any medical evidence. At the last hearing before the referee, employer agreed to accept claimant’s injuries as compensable subject to recognition of its right to subrogation of a third party recovery which claimant had secured.

[201]*201The referee issued a decision awarding compensation to claimant. In his fourth conclusion of law the referee stated that employer’s contest of the case was unreasonable and he awarded counsel fees pursuant to section 440 of The Pennsylvania Workmen’s Compensation Act (Act).¹ Specifically, the referee stated that he “assesses Claimant’s counsel fee on a quantum meruit basis at $2,500.00.” In the order section of the decision, the referee stated the following:

Defendant shall pay to Claimant’s attorney, as a cost under Section 440 of the Act, a counsel fee of twenty percent (20%) of Claimant’s lost time award up to a total of $2,500.00 which shall not be deducted from Claimant’s award. After the exhaustion of this $2,500.00, Claimant’s remaining counsel fee shall be a charge against Claimant’s award and shall be deducted from Claimant’s compensation.

Claimant appealed the referee’s decision to the Workmen’s Compensation Appeal Board which affirmed. Employer did not appeal and does not challenge the fact that the contest was unreasonable.

Claimant’s sole argument on appeal is that the referee lacked the discretionary authority to limit counsel fees awarded under section 440 to less than the amount to which claimant and his attorney agreed, in this case 20 percent of all compensation awarded. This argument is directly contrary to our recent decision in Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service), 140 Pa.Commonwealth Ct. 51, 592 A.2d 358 (1991), where we distinguished between the approval of a contingent fee agreement under section 442 of the Act² and the granting of attorney’s fees for an unreasonable contest under section 440. Under section 442, the referee must approve the contingent fee agreement and we have held that a 20 percent contingent fee is per se reasonable. In a section 440 case, the referee also must determine what is a reasonable fee to add to an award because of an unreasonable contest, and this amount may be less than [202]*202the amount claimant would have to pay if there was a reasonable contest. Id. We must therefore reject claimant’s argument.

Accordingly, we will affirm the order of the board.

ORDER

NOW, this 10th day of July, 1992, the order of the Workmen’s Compensation Appeal Board, dated May 29, 1991, at No. A89-2780, is affirmed.

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KELLEY, Judge.

Raymond Bandos (claimant) suffered a work-related injury on December 21, 1983. The injury occurred when claimant was involved in an automobile accident while driving on company business for Pennbrook Dairies (employer). Claimant missed work from December 22, 1983 through January 2, 1984. He returned to work at reduced activity from January 3, 1984 through May 25, 1984, and did not work after May 25, 1984.

Claimant filed a claim petition on October 7, 1985, and presented medical testimony in support of the petition. Employer did not present any medical evidence. At the last hearing before the referee, employer agreed to accept claimant’s injuries as compensable subject to recognition of its right to subrogation of a third party recovery which claimant had secured.

[201]*201The referee issued a decision awarding compensation to claimant. In his fourth conclusion of law the referee stated that employer’s contest of the case was unreasonable and he awarded counsel fees pursuant to section 440 of The Pennsylvania Workmen’s Compensation Act (Act).¹ Specifically, the referee stated that he “assesses Claimant’s counsel fee on a quantum meruit basis at $2,500.00.” In the order section of the decision, the referee stated the following:

Defendant shall pay to Claimant’s attorney, as a cost under Section 440 of the Act, a counsel fee of twenty percent (20%) of Claimant’s lost time award up to a total of $2,500.00 which shall not be deducted from Claimant’s award. After the exhaustion of this $2,500.00, Claimant’s remaining counsel fee shall be a charge against Claimant’s award and shall be deducted from Claimant’s compensation.

Claimant appealed the referee’s decision to the Workmen’s Compensation Appeal Board which affirmed. Employer did not appeal and does not challenge the fact that the contest was unreasonable.

Claimant’s sole argument on appeal is that the referee lacked the discretionary authority to limit counsel fees awarded under section 440 to less than the amount to which claimant and his attorney agreed, in this case 20 percent of all compensation awarded. This argument is directly contrary to our recent decision in Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service), 140 Pa.Commonwealth Ct. 51, 592 A.2d 358 (1991), where we distinguished between the approval of a contingent fee agreement under section 442 of the Act² and the granting of attorney’s fees for an unreasonable contest under section 440. Under section 442, the referee must approve the contingent fee agreement and we have held that a 20 percent contingent fee is per se reasonable. In a section 440 case, the referee also must determine what is a reasonable fee to add to an award because of an unreasonable contest, and this amount may be less than [202]*202the amount claimant would have to pay if there was a reasonable contest. Id. We must therefore reject claimant’s argument.

Accordingly, we will affirm the order of the board.

ORDER

NOW, this 10th day of July, 1992, the order of the Workmen’s Compensation Appeal Board, dated May 29, 1991, at No. A89-2780, is affirmed.

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611 A.2d 374, 149 Pa. Commw. 199, 1992 Pa. Commw. LEXIS 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bandos-v-workmens-compensation-appeal-board-pacommwct-1992.

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