Submitted: November 21, 2014.
Appealed from No. A12-1188. Workers' Compensation Appeal Board.
George D. Walker, Jr., Philadelphia, for petitioner.
David F. Stern, Philadelphia, for respondent.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE SIMPSON.
ROBERT SIMPSON, Judge
In this appeal, Attorney Larry Pitt (Former Counsel) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers' Compensation Judge (WCJ) approving a compromise and release agreement (C& R Agreement) and ordering payment of the attorney fee in the C& R Agreement to Attorney David F. Stern (Current Counsel). Former Counsel contends
the WCJ and the Board erred in awarding Current Counsel the entire fee in the C& R Agreement where Former Counsel represented Claimant for a majority of the time, performed mostly all of the work regarding his claim, and was negotiating a settlement at the time of his discharge. Thus, Former Counsel asserts the WCJ should have equitably apportioned the C& R attorney fee and awarded Current Counsel an attorney fee based on quantum meruit. For the reasons that follow, we affirm.
In July 2010, WCJ Kathleen M. DiLorenzo (First WCJ) circulated a decision granting Claimant's claim petition and review petition seeking to amend a description of injury in a temporary notice of compensation payable. Based on Claimant's average weekly wage of $858.13, First WCJ awarded Claimant indemnity benefits at the rate of $572.08 per week for the February 2009 work injuries to his right knee and lower back. Following an initial three-week period of suspension, Claimant's entitlement to benefits began March 6, 2009 and continued onward until any alteration in accordance with the terms of the Workers' Compensation Act (Act).
First WCJ's decision also approved Former Counsel's contingency fee agreement. Furthermore, the decision directed Goodman Distribution, Inc. (Employer) to pay the approved 20% contingency fee directly to Former Counsel. Pursuant to the fee agreement, Former Counsel would receive 20% of all compensation payable to Claimant as long as he received compensation.
In February 2012, Employer filed a petition for approval of a C& R Agreement. Prior to the C& R hearing before WCJ Joseph E. Hagan (Second WCJ), Claimant discharged Former Counsel and entered into a contingency fee agreement with Current Counsel. Following the hearing, Second WCJ issued an April 2012 interlocutory order approving the C& R Agreement, but declining to address Former Counsel's challenge concerning the C& R attorney fee.
In August 2012, Second WCJ issued a decision and order upholding as valid Claimant's fee agreement with Current Counsel. Second WCJ noted Former Counsel received 20% of Claimant's benefits from the date of injury through the C& R hearing. He determined Former Counsel's fee agreement did not provide for ...