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Bierman v. Workers' Comp. Appeal Bd. (Philadelphia Nat'l Bank)

Commonwealth Court of Pennsylvania

April 1, 2015

Dolores Bierman, Petitioner
v.
Workers' Compensation Appeal Board (Philadelphia National Bank), Respondent

Submitted January 16, 2015

Appealed from No. A13-0614. Workers' Compensation Appeal Board.

George D. Walker, Jr., Philadelphia, for petitioner.

Robert L. Cullen, Bristol, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

COHN JUBELIRER, JUDGE

Page 39

Attorney Larry Pitt petitions for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) Decision resolving a fee dispute between Pitt and Attorney Richard L. Cullen (Current Counsel). The WCJ resolved the dispute by approving Current Counsel's twenty percent attorney fee related to a Compromise and Release (C& R) Agreement he negotiated on behalf of Dolores Bierman (Claimant) and awarding Pitt a fee of twenty percent of Claimant's workers' compensation (WC) benefits up to the date of the settlement. On appeal, Pitt argues that because he represented Claimant for twenty-six years and was in the process of negotiating a settlement at the time of his discharge as Claimant's counsel, the WCJ erred by awarding Current Counsel the entire contingency fee derived from the C& R Agreement. Because the WCJ adequately balanced Claimant's right to select an attorney of her choice with both attorneys' expectations of receiving reasonable legal fees, we affirm.

BACKGROUND

On October 24, 1983 Claimant was injured during " the course of her employment with Philadelphia National Bank" (Employer). (WCJ Decision, Findings of Fact (FOF) ¶ 3.) Employer began to pay Claimant total disability payments pursuant to a Notice of Compensation Payable. (FOF ¶ 3.) Three years later, Employer filed a Termination Petition. (FOF ¶ 4.) Claimant retained the legal services of Pitt to defend against the Termination Petition and entered into a Contingency Fee Agreement with Pitt on January 20, 1987, wherein Pitt was to receive twenty percent " of any and all compensation paid." (FOF ¶ 5.) The Termination Petition was granted but Claimant later succeeded on a Petition for Reinstatement. (FOF ¶ ¶ 7-9.) In a September 19, 1989 decision, a WCJ awarded Claimant $221.92 per week in total disability benefits and approved the fee agreement awarding Pitt twenty percent of Claimant's WC benefits. (FOF ¶ 9.)

Claimant continued to receive her total disability benefits and Pitt continued to receive a twenty percent fee for more than twenty years. (FOF ¶ 10.) There is no evidence that Pitt performed any legal work for Claimant after September 1989 until April 2012 when settlement negotiations between Pitt, on Claimant's behalf, and Employer's insurance carrier commenced. (FOF ¶ ¶ 10-11.)

On April 27, 2012, Pitt sent a letter to Employer's insurance carrier in which he acknowledged a settlement offer of $35,000 and issued a counter-offer of " the monetary equivalent of 5 years of wage loss benefits with continuing medical benefits." (FOF ¶ 12.) After additional negotiations failed to bear fruit, Pitt sent a letter to Employer's insurer on June 11, 2012 withdrawing the settlement offer on behalf of Claimant. (FOF ¶ 13; Ex. C-Pitt #3.)

" On June 13, 2012[] Claimant entered into an Attorney Fee Agreement with" Current Counsel granting him twenty percent of Claimant's WC benefits in exchange for representing her interests in her WC claim. (FOF ¶ 14.) On the same day, Claimant sent Pitt a letter terminating his representation. (FOF ¶ 15.) The ...


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