The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: November 6, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The City of Philadelphia (Employer) petitions for review from an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) denying its Termination Petition and instructing that a twenty percent fee was to be paid to counsel for Andrea Ford-Tilgham (Claimant). We affirm.
Claimant sustained an injury in the course and scope of her employment on January 4, 2006. Employer issued a Notice of Compensation Payable (NCP) acknowledging a contusion and/or strain of the lumbar and buttocks region. The NCP contained a notation that no benefits were to be paid at the time the document was issued because Claimant continued to receive her full salary consistent with the Heart and Lung Act, Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§637-638. Employer filed a Termination Petition on February 2, 2007 alleging Claimant was fully recovered from her work-related injury as of September 18, 2006. In a decision dated August 28, 2008, the WCJ denied Employer's Petition. The WCJ ordered that "20% of Claimant's benefits be deducted and paid directly to claimant's counsel as a fee." Reproduced Record (R.R.) at 15a.
The Board affirmed. The Board found that a fee agreement in the context of a workers' compensation case must be approved if it is for twenty percent or less. The Board added that Claimant may receive benefits under the Heart and Lung Act and the Pennsylvania Workers' Compensation Act (WCA), Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501-2708, simultaneously, albeit with the caveat that any workers' compensation payments are to be turned over to Employer. It noted that the portion of workers' compensation benefits paid directly to an attorney as a fee is not subject to recovery by Employer. The Board held Claimant's counsel was entitled to the twenty percent counsel fee obtained for successfully defending against the Termination Petition filed by Employer.
Employer filed a Petition for Review with this Court. Therein, it asserted:
Defendant-Petitioner now seeks to review the Opinion and Order of the WCAB for the following reasons:
a. The WCAB erred as a matter of law in affirming the WCJ's acceptance of the Fee Agreement because that (sic) there was no authentication of this agreement by Claimant in the underlying litigation.
b. The WCAB erred as a matter of law in affirming the WCJ's acceptance of the Fee Agreement because it was submitted after the close of the evidentiary record, and the WCJ never ruled on Defendant's objection to exclude the Fee Agreement.
c. The WCAB erred as a matter of law in affirming the WCJ's approval of Claimant's counsel's fee because Claimant did not receive worker's compensation benefits while she was paid Heart and Lung Act benefits.
d. Alternatively, the WCAB erred as a matter of law in affirming the WCJ's approval of Claimant's counsel's fee because the WCJ did not specify whether said fee should be deducted directly from Claimant's Heart and Lung Act benefits, or whether this fee is to be paid above and beyond Claimant's Heart and Lung Act benefits.[*fn1 ]
Reproduced Record (R.R.) at 51a.
Upon submitting its brief to this Court, Employer has apparently abandoned its arguments concerning its allegations that the fee agreement between Claimant and her counsel was submitted after the WCJ closed the record, that the document was not authenticated, and that the WCJ failed to address its objections to the same. Employer instead focuses its energy in support of its contentions that the WCJ erred in directing it to pay Claimant's counsel a twenty percent fee for successfully defending against the Termination Petition when Claimant was not actually receiving those benefits and that, at minimum, the WCJ should be required to clarify whether the twenty percent counsel fees are deductible from Claimant's Heart and ...