S. Kry-Puy v. WCAB (C&A Labor, Inc.) ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samedy Kry-Puy, :
Petitioner :
: No. 2525 C.D. 2015
v. :
: Submitted: June 17, 2016
Workers’ Compensation Appeal :
Board (C&A Labor, Inc.), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: October 11, 2016
Samedy Kry-Puy (Claimant) petitions for review of the November 17,
2015 order of the Workers’ Compensation Appeal Board (Board) affirming the
decision of a Workers’ Compensation Judge (WCJ). In his decision, the WCJ denied
Claimant’s counsel’s request that twenty percent of Claimant’s medical benefits be
included as attorney’s fees for an unreasonable contest, but did award Claimant’s
counsel twenty percent of Claimant’s indemnity benefits. The WCJ also determined
that the contingency fee agreement, while reasonable insofar as it stated that Claimant
must pay counsel twenty percent of her indemnity benefits, was not reasonable to the
extent that it permitted counsel to collect twenty percent of Claimant’s medical
benefits. We affirm.
Facts and Procedural History
The relevant facts are as follows. On March 14, 2013, Claimant filed a
claim petition, alleging that he sustained injuries to his right forearm, hand, and
fingers on November 20, 2012, while in the course and scope of his employment as a
cook with C&A Labor, Inc. (Employer). Employer filed an answer denying the
material allegations.
Thereafter, Claimant testified in a deposition dated May 31, 2013, and
his medical expert testified in a deposition dated June 6, 2013. Employer obtained a
medical report from a general surgeon dated July 17, 2013, and a medical report from
an orthopedic surgeon dated July 30, 2013. On August 16, 2013, Employer issued a
Notice of Compensation Payable (NCP), accepting liability for Claimant’s injuries at
a weekly compensation wage of $290.00. (WCJ’s Findings of Fact at Nos. 1-2, 4, 6.)
On March 26, 2014, the WCJ convened a hearing at which Claimant
testified. Claimant also presented his deposition testimony, his expert’s deposition
testimony, and medical bills totaling $234,902.00. In response, Employer submitted
its experts’ medical reports. (WCJ’s Findings of Fact at Nos. 3, 5.)
By decision dated October 1, 2014, the WCJ granted Claimant’s claim
petition. The WCJ found as fact that:
1. On August 16, 2013, Employer issued a [NCP]. The
NCP unilaterally described the work injury as a “fracture
both bones rft forearm post open reduction w/int fixation,
ulnar nerve neuropathy, secondary rgt claw deformity and
wasting of first dorsal interosseous and abductor digiti
quinti, hypertrophic scars on rgt forearm and chronic pain in
forearm and rgt shoulder.” The NCP also reflected an
average weekly wage of $290.00 with a corresponding
weekly compensation rate of $261.00. By Order circulated
on September 11, 2013, this [WCJ] approved a twenty
percent attorney fee chargeable to Claimant’s indemnity
benefits.
2
(WCJ’s Finding of Fact at No. 1.)
In his decision, the WCJ determined that Employer engaged in an
unreasonable contest for a limited time period, namely from the time Claimant filed
the claim petition on March 14, 2013, until the time Employer filed the NCP on
August 16, 2013. In her request for attorney’s fees based upon Employer’s
unreasonable contest, Claimant’s counsel sought an award of twenty percent of
Claimant’s indemnity benefits and also twenty percent of Claimant’s medical
benefits. (WCJ’s Finding of Fact at No. 13.)
Pursuant to section 440(a) of the Workers’ Compensation Act (Act),1 77
P.S. §996(a),2 the WCJ awarded Claimant’s counsel attorney’s fees for Employer’s
unreasonable contest in the amount of twenty percent of Claimant’s total indemnity
benefits from March 14, 2013, to August 15, 2013. However, the WCJ found that,
given the circumstances of this case, an award of attorney’s fees representing twenty
percent of Claimant’s medical benefits would not be reasonable. (WCJ’s Finding of
Fact at Nos. 10, 13; Conclusion of Law at No. 8.)
In this regard, the WCJ specifically found that:
11. The evidence of record supports that there was an
unreasonable contest of the instant [claim] petition from the
time of the filing of the petition on March 14, 2013, until
Employer filing of the [NCP] on August 1, 2013. Employer
did not submit any evidence of record that disputed the
occurrence of the work incident or the nature and extent of
the injury or disability.
* * *
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
Added by the Act of February 8, 1972, P.L. 25, as amended.
3
13. An attorney fee in the amount of [twenty percent] of
Claimant’s indemnity benefits from March 14, 2013,
through August 15, 2013, payable over and above
Claimant’s indemnity benefits, is found to be a reasonable
attorney fee under the circumstances of the instant matter.
The degree of difficulty of the work performed was
standard/average, and the amount of work performed
regarding the instant matter was minimal. Thus, an award
of attorney’s fees against medical benefits would not be
reasonable under the circumstances.
(WCJ’s Finding of Fact at Nos. 11, 13.) Therefore, in its order, the WCJ directed
that:
Employer shall pay an attorney fee for an unreasonable
contest in the amount of [twenty percent] of Claimant’s
indemnity benefits payable from March 14, 2013, through
August 15, 2013, over and above the indemnity benefits
payable to Claimant during the aforementioned time period.
This amount shall be paid DIRECTLY to Claimant pursuant
to the provisions of the [Act].
(WCJ’s Order at 1.)
While the WCJ approved Claimant’s contingency fee agreement with
her counsel as “fair and reasonable,” (WCJ’s Finding of Fact at No. 16), because this
fee agreement included payment of twenty percent of any payments for Claimant’s
“medical treatment and hospital bills,” (WCJ’s Finding of Fact at No. 9), the WCJ
was required to determine if this aspect of the contingency fee agreement was
reasonable.3
In so determining, the WCJ specifically found that:
3
See, e.g., Righter v. Workers’ Compensation Appeal Board (Righter Parking), 141 A.3d
628, 632-33 (Pa. Cmwlth. 2016); Piergalski v. Workmen’s Compensation Appeal Board (Viviano
Macaroni Co.), 621 A.2d 1069, 1073 (Pa. Cmwlth. 1993).
4
9. Claimant’s fee arrangement with his counsel reads as
follows: “ . . . in the event that I receive or am permitted to
continue to receive my workers’ compensation benefits, my
attorney . . . will receive twenty percent (20%) of all
compensation payable as long as I receive workers’
compensation benefits. This includes payment of all
medical treatment and hospital bills.”
* * *
16. The Claimant’s fee arrangement with his counsel is
found to be both fair and reasonable. It is approved by this
[WCJ].
(WCJ’s Finding of Fact at Nos. 9, 16.) Nonetheless, the WCJ ultimately found that
“attorney’s fees against [Claimant’s] medical benefits would not be reasonable under
the circumstances.” (WCJ’s Finding of Fact at No. 13.) Accordingly, in its order, the
WCJ stated:
Employer is also DIRECTED to continue to deduct a
[twenty percent] attorney fee from Claimant’s continuing
indemnity benefits, unless and until altered pursuant to the
provisions of the [Act]. This attorney fee payment shall be
made directly to Claimant’s counsel . . . .
(WCJ’s Order at 1.)
This portion of the order reflects that the WCJ approved the contingency
fee agreement insofar as it authorized payment of twenty percent of Claimant’s
indemnity benefits, but declined to approve the contingency fee agreement to the
extent that it permitted counsel to collect twenty percent of Claimant’s medical
benefits.
In deciding both the unreasonable contest and contingency fee
agreement issues, the WCJ initially noted that Claimant’s counsel did not submit a
quantum meruit fee statement into the record. The WCJ then explained that
5
Claimant’s counsel performed approximately an hour-and-a-half of legal work in the
instant matter: a pre-trial hearing on April 24, 2013 (6 minutes); a hearing on March
26, 2014 (29 minutes); the deposition of Claimant (26 minutes); and the deposition of
Claimant’s expert (30 minutes). (WCJ’s Findings of Fact at Nos. 10, 12.) The WCJ
further found that “the degree of difficulty of the work performed [by Claimant’s
counsel] was standard/average and the amount of work performed . . . was minimal.”
(WCJ’s Finding of Fact at No. 13.) Based on these facts, the WCJ excluded twenty
percent of the payments for Claimant’s medical treatment and hospital bills from both
the award for Employer’s unreasonable contest under section 440 of the Act and the
contingency fee agreement under section 442 of the Act, 77 P.S. §998.4
Claimant’s counsel appealed to the Board and argued that the WCJ’s
award of attorney’s fees for Employer’s unreasonable contest should have been
calculated to include twenty percent of the medical benefits. The Board disagreed,
concluding that the WCJ did not abuse his discretion in determining that such an
award would not be reasonable. In so deciding, the Board noted that the submitted
medical bills totaled $234,902.00, of which twenty percent would equal $46,980.40,
and that Claimant’s counsel performed an hour-and-a-half of legal work of average
difficulty. The Board further noted that the WCJ found that Employer’s contest was
only partially unreasonable – from March 14, 2013, to August 15, 2013 – and
Employer filed an NCP and paid Claimant benefits during the litigation. (Board’s
decision at 3, 5.) On this reasoning, the Board concluded that the WCJ’s exclusion
was “proper” and that the WCJ “reasonably related the work involved to the award.”
(Board’s decision at 3.)
4
Added by Section 3 of the Act of February 8, 1972, P.L. 25.
6
Claimant’s counsel also argued that the WCJ erred in failing to approve
the portion of the contingency agreement stating that Claimant would pay counsel
twenty percent of her medical benefits. In rejecting this contention, the Board offered
the following rationale:
[T]he contingent fee agreement between Claimant and his
counsel [includes] a twenty percent fee on payment of all
medical treatment and hospital bills. However, despite this
agreement, the [WCJ] concluded that this twenty percent
fee was not reasonable under the circumstances, and only
directed Claimant’s fee to include indemnity benefits.
While a [WCJ] is not prohibited from approving a
contingency fee agreement that includes a percentage of
medical benefits, that award must still constitute a
reasonable fee. In this case, we agree with the [WCJ’s]
conclusion that the fee was not reasonable under the
circumstances . . . . Claimant’s counsel performed minimal
work of average difficulty, not enough to constitute a
$46,980.40 fee . . . . Thus, the [WCJ] correctly did not fully
approve Claimant’s counsel’s contingent fee agreement and
only awarded twenty percent of the indemnity benefits.
(Board’s decision at 3-5.)
Discussion
On appeal to this Court5 Claimant’s counsel argues that the WCJ erred in
failing to approve the contingency agreement in its entirety and seemingly takes issue
with the WCJ’s decision insofar as the WCJ did not grant an award of twenty percent
of Claimant’s medical benefits for Employer’s unreasonable contest. For support,
5
Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow
Lakes Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).
7
Claimant’s counsel cites Koszowski v. Workmen’s Compensation Appeal Board
(Greyhound Lines, Inc.), 595 A.2d 697 (Pa. Cmwlth. 1991), and Raulston v.
Workmen’s Compensation Appeal Board (Tri-State Motor Transit), 606 A.2d 668
(Pa. Cmwlth. 1992), and argues that she is automatically entitled to an attorney’s fee
of twenty percent of Claimant’s medical benefits. Claimant’s counsel further argues,
in a cursory fashion, that she should have received a higher award of attorney’s fees
based upon the amount of work she performed.
Significantly, while section 440 dictates the standard to be used for
assessing attorney’s fees for an unreasonable contest, here Claimant and counsel
entered into a contingency fee agreement, so we must also apply section 442 of the
Act, which controls the analysis for determining the reasonableness of contingency
fee agreements.
First, pursuant to section 440(a) of the Act, where attorney’s fees are
awarded because the employer’s contest is unreasonable, the WCJ must determine
what is a “reasonable sum” of attorney’s fees. 77 P.S. §996(a). In pertinent part,
section 440(a) of the Act provides:
In any contest . . . including contested cases involving
petitions to terminate . . . compensation awards . . . the
employe . . . in whose favor the matter at issue has been
finally determined in whole or in part shall be awarded, in
addition to the award for compensation, a reasonable sum
for costs incurred for attorney’s fee, witnesses, necessary
medical examination, and the value of unreimbursed lost
time to attend the proceedings: Provided, That cost for
attorney fees may be excluded when a reasonable basis for
the contest has been established by the employer or the
insurer.
77 P.S. §996(a) (emphasis added). In Wommer v. Workmen’s Compensation Appeal
Board (Lycoming County), 479 A.2d 661, 661 (Pa. Cmwlth. 1984), this Court
8
concluded that where there is an unreasonable contest under section 440(a) of the
Act, an award of attorney’s fees based on a percentage of the total compensation
award, including medical expenses, may be appropriate in the right circumstances.
Nonetheless, we emphasized that an award of attorney’s fees based upon a percentage
of medical benefits must be found by the WCJ to be reasonable. Wommer, 479 A.2d
at 662-63.
In determining the reasonableness of attorney’s fees in an unreasonable
contest, section 440(b) of the Act directs the WCJ to make:
a finding as to the amount and the length of time for which
such counsel fee is payable based upon the complexity of
the factual and legal issues involved, the skill required, the
duration of the proceedings and the time and effort required
and actually expended.
77 P.S. §996(b). The reasonableness of the attorney’s fees depends on the difficulty
of the work performed by a claimant’s attorney, and so long as the amount and
difficulty of the work performed by the claimant’s attorney is reasonably related to
the fee awarded, this Court will not disturb the WCJ’s award. Elite Carpentry
Contractors v. Workmen’s Compensation Appeal Board (Dempsey), 636 A.2d 250,
253 (Pa. Cmwlth. 1993).
Here, the WCJ made the following finding of fact:
12. The evidence of record supports that the following
legal services were performed by Claimant’s counsel
regarding the instant matter:
Attendance at Pre-trial hearing on April 24,
2013 – 6 minutes
Attendance at March 26, 2014 hearing [and the
taking of] Claimant's testimony – 29 minutes
9
Attendance at deposition of the Claimant – 26
minutes
Attendance at deposition of James L. Tweedy,
D.O. – 30 minutes
(WCJ’s Finding of Fact at No. 12.) Based on the above, the WCJ found that
Claimant’s counsel expended approximately an hour-and-a-half of legal work in the
instant matter.
In her brief, Claimant’s counsel does not assert that the WCJ failed to
include time that she spent in pursuing Claimant’s case, above and beyond that which
the WCJ found that she devoted. Indeed, Claimant’s counsel does not challenge the
WCJ’s finding that she performed approximately an hour-and-a-half of legal work in
the instant matter. Instead, in terms of the work she performed, Claimant’s counsel
only discusses the time she spent “taking the testimony of [C]laimant and his
physician,” (Claimant’s brief at 8), which the WCJ expressly included in determining
the time expended and appropriate award of attorney’s fees for Employer’s
unreasonable contest. (WCJ’s Finding of Fact at No. 12.)
Based upon our calculations, Claimant will receive, from Employer,
approximately $1,160.00 in overall attorney’s fees ($290.00 weekly compensation
wage times twenty weeks of an unreasonable contest divided by twenty percent) for
approximately an hour-and-a-half of legal work. We cannot conclude that the WCJ
erred in failing to order Employer to pay a larger sum for attorney’s fees because the
WCJ’s finding that Claimant’s counsel spent “minimal” time on the case and there
was a “standard/average” degree of difficulty of the work involved is supported by
the record. (WCJ’s Finding of Fact at No. 13.)
As noted earlier, where Claimant’s counsel challenges an award of
attorney’s fees pursuant to a contingency agreement, we apply section 442 of the Act.
10
Section 442 of the Act provides in relevant part:
All counsel fees, agreed upon by claimant and his attorneys,
for services performed in matters before any workers’
compensation judge or the board, whether or not allowed as
part of a judgment, shall be approved by the workers’
compensation judge or board as the case may be, providing
the counsel fees do not exceed twenty per centum of the
amount awarded.
77 P.S. §998 (emphasis added). Contrary to Claimant’s counsel’s argument, “[i]n
both Koszowski and Raulston, this Court determined that while [twenty percent] of a
claimant’s medical expenses could be awarded as attorney’s fees [under section 442
of the Act] . . . [twenty percent] of the medical expenses should only be awarded as
attorney’s fees if this amount constitutes a ‘reasonable’ attorney’s fee.” Piergalski v.
Workmen’s Compensation Appeal Board (Viviano Macaroni Co.), 621 A.2d 1069,
1073 (Pa. Cmwlth. 1993) (emphasis added).
This Court recently discussed the intent of and purpose behind section
442 of the Act, as well as the pertinent analysis when deciding whether to approve a
contingency fee agreement as it pertains to medical benefits:
Section 442 evidences a legislative intent of protecting
claimants against unreasonable fees charged and imposed
on them by their attorneys under their own improvident fee
agreements . . . . Section 442 of the Act implies that the
WCJ must approve an attorney’s fee if there is first, an
agreement between claimant and attorney and second, the
agreement does not exceed [twenty percent] of the amount
awarded. Although a [twenty] percent fee agreed to
between counsel and a claimant is per se reasonable, this
principle only applies to an award of [twenty] percent of the
indemnity benefits awarded to a claimant, and WCJs must in
all instances conduct a separate analysis regarding medical
bill payments. While [twenty percent] of a claimant's
medical expenses could be awarded as attorney’s fees,
[twenty percent] of a claimant’s medical expenses should
11
only be awarded as attorney’s fees if this amount constitutes
a ‘reasonable’ attorney’s fee.
In determining whether medical bill payments should be
included in a contingent fee agreement, the WCJ must
assess: (1) whether the claimant and counsel intended for
counsel to receive a percentage of the medical bill
payments; and (2) whether the fee is reasonable. We have
further held that a reasonableness inquiry in this context
should address the amount and degree of difficulty of the
work performed by the attorney . . . . Thus, counsel seeking
a contingent fee on medical bill payments in addition to the
per se reasonable [twenty] percent contingent fee on
indemnity benefits must demonstrate to the WCJ why such
a fee is justified in light of the time and effort expended
on obtaining medical benefits for the claimant. Upon
receipt of this evidence, the WCJ will conduct a quantum
meruit analysis to determine the reasonableness of any fee
in excess of [twenty] percent of the claimant’s indemnity
benefits.
Righter v. Workers’ Compensation Appeal Board (Righter Parking), 141 A.3d 628,
632-33 (Pa. Cmwlth. 2016) (italics emphasis in original, bold emphasis added,
citations and internal brackets omitted).
In her brief, Claimant’s counsel does not advance any meaningful
argument that the WCJ abused his discretion in discounting as unreasonable twenty
percent of Claimant’s medical benefits from the contingency fee agreement.
Significantly, Claimant’s counsel does not point to any evidence pertaining to the
legal work she devoted to the collection, preparation, and/or analysis of the medical
bills or the time and effort she expended on obtaining medical benefits for Claimant.
Indeed, Claimant’s counsel did not submit a quantum meruit fee statement into the
record. (WCJ’s Finding of Fact at No. 10.) As mentioned above, Claimant’s counsel
only discusses the time she spent “taking the testimony of [C]laimant and his
physician,” (Claimant’s brief at 8), and it is not readily apparent which portion of this
12
time – if any – was related to medical benefits. Moreover, the WCJ reviewed the
only evidence of record and found that Claimant’s counsel performed approximately
an hour-and-a-half of legal work in the instant matter.
Based on the above, the WCJ found that, overall, Claimant’s counsel
spent “minimal” time on a case that possessed a “standard/average” degree of
difficulty, (WCJ’s Finding of Fact at No. 12), and $46,980.40 in attorney’s fees for
one-and-a-half hours of documented legal work is patently unreasonable. Given this
record, we cannot conclude that the WCJ abused his discretion in not fully approving
Claimant’s counsel’s contingency fee agreement and only permitting counsel to
collect twenty percent of Claimant’s indemnity benefits. See Righter, 141 A.3d at
633-34 (concluding that the WCJ did not abuse his discretion in determining that
counsel was not entitled to an attorney fee of twenty percent of the medical bills
where the case was not “exceedingly difficult or time consuming” and the attorney
failed to establish the specific amount of time that was spent advancing the payment
of claimant’s medical bills).6
6
In Righter, the WCJ analyzed a contingency fee agreement and the amount and nature of
the work that the claimant’s counsel performed in conjunction with litigating a successful claim
petition, which was primarily resolved through the result of stipulations between the parties. The
WCJ permitted the claimant’s counsel to receive twenty percent of the claimant’s indemnity
benefits, but did not allow the claimant’s counsel to collect twenty percent of the claimant’s medical
benefits. On appeal, this Court determined whether the WCJ erred in concluding that the claimant’s
counsel was not entitled to an attorney fee of twenty percent of the medical bills. In concluding that
the WCJ did not abuse his discretion, this Court stated:
[W]e agree with the WCJ’s conclusion that the work performed by
[c]ounsel does not warrant an award beyond [twenty] percent of the
indemnity benefits . . . . The case does not appear to have been
exceedingly difficult or time consuming; the major issues were
resolved through the First and Second Stipulations; and there is no
evidence in the record showing a dispute to [the claimant’s]
entitlement to medical benefits that required extensive legal work.
(Footnote continued on next page…)
13
Conclusion
Pursuant to section 440 of the Act, if an employer is found to have
engaged in an unreasonable contest, the WCJ shall award a reasonable sum for
attorney’s fees, including a percentage of the total compensation awarded, but only as
long as those fees are reasonable. Where, as here, there is a contingency fee
agreement between claimant and counsel, this analysis must also include application
of section 442 of the Act. This provision states that the WCJ may approve a
contingency fee agreement that provides payment for no more than twenty percent of
a claimant’s indemnity benefits on the basis that such a payment is per se reasonable,
which the WCJ did here. However, regarding medical benefits, the WCJ must
determine whether payment of twenty percent of medical benefits is reasonable.
Based on the record in this case, and the WCJ’s unchallenged findings of
fact, we conclude that the WCJ did not err in declining to grant Claimant’s counsel an
amount equal to twenty percent of Claimant’s medical benefits for attorney’s fees on
the ground that such fees were not reasonable. Similarly, we discern no abuse of
discretion on the Board or WCJ’s part in not permitting Claimant’s counsel to collect
(continued…)
The WCJ’s finding that there was no indication that the payment of
the medical bills was advanced by the legal work performed sufficient
to warrant a [twenty] percent attorney fee was not error. Whether the
fees are reasonable is not based on the work performed in the case as
a whole as argued by [c]ounsel. Instead, the WCJ correctly examined
whether the [c]laimant established that the time and effort expended
by [c]ounsel advancing the payment of [the claimant’s] medical bills
was sufficient to warrant the fee.
Righter, 141 A.3d at 633-34.
14
twenty percent of Claimant’s award for medical benefits under the contingency
agreement.
Accordingly, having determined that Claimant’s arguments lack merit,
we affirm the November 17, 2015 order of the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
Senior Judge Pellegrini concurs in result only.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samedy Kry-Puy, :
Petitioner :
: No. 2525 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (C&A Labor, Inc.), :
Respondent :
ORDER
AND NOW, this 11th day of October, 2016, the November 17, 2015
order of the Workers’ Compensation Appeal Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge