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PAUL R. MAZZONI v. WORKMEN'S COMPENSATION APPEAL BOARD ( UNITED STATES FIDELITY & GUARANTY COMPANY) (05/04/88)

decided: May 4, 1988.

PAUL R. MAZZONI, ESQUIRE AND ARTHUR J. RINALDI, ESQUIRE, IN THE MATTER OF RALPH LUCIANI, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THE UNITED STATES FIDELITY & GUARANTY COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Ralph Luciani v. Mele Construction & Tri-County Excavating, No. C.F. 2466, A-83010.

COUNSEL

Paul R. Mazzoni, with him, Arthur J. Rinaldi, petitioners for themselves.

John C. Mascelli, for respondent, The United States Fidelity & Guaranty Company.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 115 Pa. Commw. Page 631]

Paul Mazzoni and Arthur J. Rinaldi, attorneys, petition for review of a decision of the Workmen's Compensation Appeal Board (board) which ruled, in the particular circumstances of this case, that "the defendant's insurance carrier is not required to pay 20% counsel fees to the claimant's attorney for any period of time prior to the referee's decision."

The petitioner attorneys apparently are not seeking an order compelling the carrier to withhold and pay to them more than 20% of future compensation owed to the claimant. However, for the purpose of recouping counsel fees during the period from their entry into the case until the time of the award, the petitioner attorneys seek an order requiring the carrier to pay their counsel fees for the pre-award period in addition to the full compensation already paid by the employer to the claimant throughout that period. The petitioner attorneys offer no authority for such an order; they rely merely on a concept which they label as "over-riding inequities."

Because there is no dispute as to the referee's decision that there was a reasonable basis for a contest and that no penalties or counsel fees should be imposed upon the defendant or the insurance carrier, the issue of first impression before us is limited solely to whether the insurance carrier is responsible to the claimant's attorneys for retroactive payment of counsel fees arising before the referee's decision, but during which time the claimant received full compensation from the carrier.

The referee found that the claimant suffered a work-related injury on November 2, 1977. The employer filed a notice of compensation payable on November 30, 1977 with the Bureau of Workers Compensation (bureau) providing for benefits to be paid to the claimant beginning November 3, 1977, at the rate of $199 per

[ 115 Pa. Commw. Page 632]

    week, based upon the specific loss of the claimant's left leg. The insurance carrier's payments to the claimant in the full amount began on November 3, 1977, and have continued to the present.

On May 10, 1979, these petitioners entered the case as claimant's counsel and filed a claim petition with the bureau alleging that "other disabling injuries" incurred on November 2, 1977. The defendant filed an answer to the claim, admitting that the specific loss of the claimant's left leg was a work-related injury being fully compensated, but denying that the claimant suffered other injuries. The matter proceeded to hearing before a referee, who considered the May claim petition as a petition for review.

On January 19, 1982, the referee issued a decision directing "the defendant and/or his insurance carrier" to pay the claimant compensation for total disability at the rate of $199 per week beginning November 3, 1977, continuing indefinitely thereafter within the limitations of The Pennsylvania Workmen's Compensation Act (Act).*fn1 Furthermore, following such completion of payments for total disability, the defendant and/or insurance carrier must pay the claimant compensation for the specific loss of the left leg at the rate of $199 per week for a period of 410 weeks. The referee's order significantly states that "[t]he defendant and/or insurance carrier is entitled to credit for all compensation payments made to claimant to date." The referee approved counsel fees in ...


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