P. Williams v. City of Philadelphia (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patrice Williams, :
Petitioner :
:
v. : No. 277 C.D. 2023
:
City of Philadelphia : Submitted: February 6, 2024
(Workers’ Compensation :
Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE McCULLOUGH FILED: March 21, 2024
In this workers’ compensation case, Patrice Williams (Claimant) petitions
for review of the March 8, 2023 opinion and order of the Workers’ Compensation
Appeal Board (Board), which affirmed the July 22, 2022 decision and order of
Workers’ Compensation Judge Ashley Drinkwine (WCJ). The WCJ granted in part,
and denied in part, Claimant’s Petition to Review Compensation Benefits (Review
Petition), through which she sought to amend the description of her work injury. The
WCJ also approved a 20% fee agreement between Claimant and her counsel, but
limited its application to indemnity benefits only. The Board affirmed the WCJ. As
set forth below, we affirm the Board in part, and reverse in part.
I. FACTS AND PROCEDURAL HISTORY
On March 4, 2021, Claimant sustained work-related injuries during the
scope and course of her employment with the City of Philadelphia (Employer) as a
correctional officer at the Curran Fromhold Correctional Facility. On July 22, 2021,
Employer issued an Amended Notice of Compensation Payable (NCP) acknowledging
injuries described as a thumb strain or tear, right wrist sprain, right hand sprain, and
right shoulder sprain. Employer paid wages in lieu of compensation benefits effective
March 5, 2021.
On August 2, 2021, Claimant filed a Claim Petition in which she alleged
that she also sustained work-related injuries in the nature of carpal tunnel syndrome
and aggravation of preexisting arthritis. She accordingly sought temporary total
disability benefits payable as of July 1, 2021, together with medical expenses and
counsel fees. At the first hearing on the Claim Petition on September 13, 2021,
Claimant moved to convert the Claim Petition to a Review Petition and amend the
original injury description to include carpal tunnel syndrome. In response, on
December 10, 2021, Employer issued a second Amended NCP that expanded the
description of Claimant’s injury to include carpal tunnel syndrome. At a hearing on
December 13, 2021, Claimant moved to amend her Review Petition to add right lateral
epicondylitis to her injury description, which addition was the only remaining
contested issue before the WCJ.
In support of her Review Petition, Claimant submitted her October 11,
2021 deposition testimony and also testified live. At her deposition, Claimant testified
that she was injured while wringing out a mop. She felt pain in her right thumb that
then traveled to her right shoulder. (Claimant’s Dep., 10/11/21, at 5-6, 8, 31;
Reproduced Record (R.R.) at 8a-9a, 11a, 34a.) Claimant initially treated with
Concentra1 and later a pain management specialist and her primary care physician. Id.
at 8-9; R.R. at 11a-12a. X-rays of Claimant’s hand, wrist, and shoulder were taken, as
well as magnetic resonance images (MRI) of her hand, wrist, and thumb. Id. at 31-32;
1
Concentra provides occupational health services for, inter alia, work-related illnesses and
injuries. See About Concentra, available at https://www.concentra.com/about-us/ (last visited March
20, 2024).
2
R.R. at 34a-35a. Claimant eventually also treated with Dr. Zena Zingerman and
underwent physical therapy, shock treatment, heat, and strength training. Id. at 12-13,
40; R.R. at 15a-16a, 43a. As of the date of her deposition, Claimant was having
difficulty with her right hand and arm but could perform tasks such as driving and,
occasionally, house cleaning. Id. at 14-15, 47-48; R.R. at 17a-18a, 50a-51a.
Before the WCJ on March 7, 2022, Claimant testified that she has
numbness and tingling around her wrist and pain that extends into her forearm. (Notes
of Testimony (N.T.), 3/7/22, at 7-8; R.R. at 113a-14a.) Regarding her elbow, Claimant
testified that it is painful to the touch and is uncomfortable at night. Id. at 10; R.R. at
116a. Claimant was still treating with Dr. Zingerman at this time, and she testified that
she had complained of elbow pain to Dr. Zingerman in August 2021. Id. at 10, 14-15;
R.R. at 116a, 120a-21a. Claimant acknowledged, however, that she did not complain
of elbow pain while treating at Concentra and never had an x-ray or MRI of her elbow.
Id. 13-14; R.R. at 119a-20a.
Claimant also submitted the deposition testimony of Dr. Zingerman, a
medical doctor who chiefly treats patients with neuromusculoskeletal problems and
functional deficits following chronic disease or surgery. (Zingerman Dep., 12/8/21, at
6-7; R.R. at 76a-77a.) When Claimant first treated with Dr. Zingerman in August 2021,
Claimant complained of pain through her right wrist, forearm, and upper arm, and
numbness in her first, second, and third fingers. Id. at 8; R.R. at 78a. Dr. Zingerman
performed a physical examination of Claimant on August 5, 2021, which revealed that
Claimant had full and painless range of motion in her right elbow and tenderness distal
to the lateral epicondyle. Id. at 9-10; R.R. at 79a-80a. A tennis elbow test also was
negative. Id. at 10; R.R. at 80a. Based on the examination, Dr. Zingerman initially
3
diagnosed Claimant with “[r]ight carpal tunnel syndrome, right lateral epicondylitis,
[and] myofascial pain affecting [the] upper extremity.” Id.
Dr. Zingerman continued to treat Claimant with physical therapy. During
a follow-up appointment in August 2021, Claimant continued to complain of right wrist
and hand pain and numbness in her first three fingers. Id. at 10-11; R.R. at 80a-81a.
An MRI of Claimant’s hand and wrist showed “mild arthritic changes at the
[scaphotrapeziotrapezoidal (STT)] joint,” moderate arthritic changes at the “first
carpometacarpal (CMC)],” “first interphalangeal joint osteoarthritis,” and “moderate
first [CMC] joint osteoarthritis.” Id. at 11; R.R. at 81a. At a visit on October 13, 2021,
Claimant’s diagnoses were expanded to include right carpal tunnel syndrome and right
lateral epicondylitis. Id. at 12; R.R. at 82a. At the time, Claimant was “complaining
of ongoing right wrist, forearm, and elbow pain, as well as numbness in the first three
digits,” and she “continued to experience difficulty using [her] right upper extremity to
perform daily functional tasks, such as driving, grasping, lifting items, and opening or
closing jars.” Id. at 13; R.R. at 83a. During an examination on October 28, 2021, Dr.
Zingerman noted similar ongoing conditions, including “right elbow radial tenderness
over [the] lateral epicondyle.” Id. at 14; R.R. at 84a. Based on her collective
evaluations and review of diagnostic study results, Dr. Zingerman ultimately diagnosed
Claimant with right carpal tunnel syndrome and right lateral epicondylitis, both of
which she related to Claimant’s work injury. Id. at 15; R.R. at 85a.
For its case, Employer submitted the deposition testimony of its medical
expert, Dr. Jack Abboudi. Dr. Abboudi is a board-certified orthopedic surgeon who
has an additional certification in hand surgery. (Abboudi Dep., 2/22/22, at 7;
Supplemental Reproduced Record (S.R.) at 007b.) Dr. Abboudi has been performing
orthopedic surgery with a specific specialty and focus of the upper extremities since
4
2000. Id. at 6; S.R. at 006b. His practice includes treatment of carpal tunnel syndrome
and lateral epicondylitis. Id. at 8; S.R. at 008b. Dr. Abboudi performed an independent
medical examination (IME) of Claimant on November 3, 2021. As part of his
examination, he reviewed Dr. Zingerman’s August 5, 2021 report. Id. at 10-11; 16-17;
S.R. at 010b-11b, 016b-17b. He also performed a physical examination of Claimant,
including her elbow. He noted that she had normal range of motion with no
abnormalities, no tenderness at the epicondyle, and no instability. Id. at 22; S.R. at
022b. Based on his observations, Dr. Abboudi determined that Claimant was fully
recovered from her hand, wrist, and shoulder strains. He further determined that she
had arthritis in her thumb that pre-dated, and was not aggravated by, her work injury.
Id. at 31-33; S.R. at 031b-33b. He nevertheless diagnosed her with work-related carpal
tunnel syndrome in her right wrist. Id. at 31; S.R. at 031b.
With regard to lateral epicondylitis specifically, Dr. Abboudi prepared a
supplemental report in which he noted that Claimant showed no evidence of lateral
epicondylitis during her examination on November 3, 2021. He observed that Claimant
did not complain of elbow pain to him or to the physicians who treated her close in
time to her work injury. He further noted that none of Claimant’s treating physicians,
except Dr. Zingerman, diagnosed lateral epicondylitis. Id. at 36-39; 58-59; 105-106;
S.R. at 036b-39b; 058b-59b; 105b-06b. In preparation of his supplemental report, Dr.
Abboudi reviewed the deposition transcript of Dr. Zingerman and her treatment records
and emphasized that the only findings from Dr. Zingerman that arguably were
consistent with lateral epicondylitis were those from October 28, 2021. Id. at 039-42;
S.R. at 039b-42b. Dr. Abboudi examined Claimant six days after Dr. Zingerman and
did not make the same findings. Id. at 42-43; S.R. at 042b-43b. Additionally,
5
Claimant’s test for “tennis elbow,” the lay term for lateral epicondylitis, was negative.
Id. at 39-42; S.R. at 039b-42b. Dr. Abboudi summarized his opinion as follows:
So, putting all this together, I do[ not] see any validation to
this complaint. I do[ not] see any substantiation of it
objectively[.] [N]ot only me, [but] 16 other medical doctor
encounters have also failed to find this diagnosis. And even
Dr. Zingerman’s own notations are inconsistent where she
mentions the diagnosis, but her examination indicates that it[
is] negative.
Id. at 41; S.R. at 041b.
Claimant submitted a claim for counsel fees, and in support introduced a
fee agreement executed with her counsel on July 28, 2021 (Fee Agreement). The Fee
Agreement states, in pertinent part, as follows:
[O]nce the contingency does occur my attorney . . . will
receive [20] percent (20%) of all compensation payable to
me for as long as I receive workers’ compensation benefits.
This includes payment for all medical treatment and hospital
bills. I understand that the medical provider m[ay] seek
payment from me for twenty percent of the medical bills[.] I
have been advised by my attorney that [the provider] cannot
[do] so in accordance with Section 306(f.1)(7) of the
Workers’ Compensation Act[(Act)],[2] 77 P.S. [§] 531(7).
....
The contingency is the award by any worker[s’]
compensation judge of a fee of twenty percent deductible
from any award of wage loss or medical benefits or of any
order permitting me to continue to receive wage loss or
medical benefits. Once this contingency occurs, the
deduction of the [20%] fee will continue for the full duration
of the time that I continue to receive wage loss or medical
benefits.
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. Section
306(f.1)(7) was added by the Act of July 2, 1993, P.L. 190, No. 44.
6
(R.R. at 3a.) At Claimant’s deposition, the following exchange occurred regarding the
Fee Agreement:
Q[By Attorney Kerzner]. You have a fee agreement
with my office that if you’re successful in this litigation we
would receive 20[%] of your benefits as a fee for
representing you, right?
A[Claimant]. Right.
Q. Is that acceptable to you?
A. Right. I signed it.
Q. Yes. And when you signed, you were aware of what
it said, right?
A. Yes.
....
Q. Miss Williams, the fee agreement that you signed
specifically stated that the attorney’s fee can be deducted on
wage loss benefits, in other words, the checks you’re getting
now. It also says that, pursuant to what the courts of this
Commonwealth have stated, it could be deducted off of any
doctor bills that the employer pays, treatment that you’ve
had. If [it pays] a bill, then our fee agreement would entitle
us to 20[%] off of that doctor’s bills. Do you understand
that?
A. Yes.
Q. What the [j]udges want us, in particular, to ask you
about, and all injured workers, is—there is a possibility—we
don’t believe that it’s a strong possibility, but there is a
theoretical possibility that a doctor who has 20[%] of [his or
her] bill deducted for an attorney’s fee—so, in other words,
the employer pays [the doctor] 80[%] of [the] bill, and your
attorney gets 20[%] of that bill as a fee for having won the
doctor’s right to get paid from that bill. There’s a possibility
the [doctor] might turn around and seek that from the injured
worker.
....
7
Q. The doctor might turn around and seek that from the
injured worker because [the doctor] received from the
employer as payment 80[%] of [the] bill. Now, our fee
agreement provides for that deduction of 20[%] from the
doctor’s bill to be paid to us as an attorney’s fee. Did you
understand, fully, what I’ve just explained to you and did you
understand that when you signed the fee agreement, in other
words, a 20[%] attorney’s fee is deductible from all benefits?
An injured worker gets both wage loss and medical benefits.
You understand that?
A. Yes.
Q. That 20[%] is payable from both your checks and from
the doctor’s bills; do you understand that?
A. Yes.
Q. You understand that the theoretical possibility exists
that a doctor, whoever it might be, might seek that 20[%]
that’s been cut off [his or her] bill, might turn around and ask
you for that; you understand that that possibility exists?
A. Yes.
Q. Now, knowing that—and I’ve explained all of this to
you, I think, in great detail—do you consent to this [F]ee
[A]greement?
A. Consent to what?
Q. Do you consent to this [F]ee Agreement?
A. Yes.
(Claimant’s Dep., 10/11/21, at 16-20; R.R. at 19a-23a.)3
The WCJ granted the Review Petition, in part. The WCJ found that
Claimant suffered from carpal tunnel syndrome in addition to the conditions previously
acknowledged by Employer. (WCJ Finding of Fact (FOF) 12; R.R. at 140a.) The WCJ
additionally found, however, that Claimant did not suffer from lateral epicondylitis.
3
Claimant also acknowledged the Fee Agreement in her live testimony before the WCJ on
March 7, 2022. (N.T., 3/7/22, at 10-11; R.R. at 116a-17a.)
8
(FOF 13; R.R. at 140a.) The WCJ supported her findings with the following
evidentiary weight and credibility determinations:
9. [The WCJ] has carefully reviewed the deposition and
hearing testimony of Claimant and finds Claimant to be
credible and persuasive, except for her testimony regarding
complaints specific to her left elbow. In making this
determination, [the WCJ] relies on the following: Claimant
has a 25-year work history with Employer. Claimant made
attempts to work modified duty when released to do so,
before being placed out of work by Concentra. This
determination is also based in part on [the WCJ’s]
opportunity to observe Claimant’s demeanor and
comportment when she testified live by video at the hearing
before this [WCJ]. In rejecting Claimant’s testimony as it
relates to left elbow complaints, this [WCJ] notes that
Claimant initially related radiating pain up her arm but did
not relate complaints to the elbow specifically. Moreover,
Claimant’s October 11, 2021[ ] deposition did not include
any testimony regarding complaints specific to the elbow.
10. This [WCJ] has carefully reviewed the testimony of
Dr. Abboudi and finds Dr. Abboudi credible regarding the
alleged lateral epicondylitis. In making this determination,
[the WCJ] relies on the following: Dr. Abboudi is a board-
certified orthopedic surgeon, with an added qualification in
the upper extremity. Further, he reviewed relevant records,
including diagnostic studies and films from the hand and
wrist MRI. Dr. Abboudi’s opinion that Claimant did not
sustain lateral epicondylitis was corroborated by the lack of
findings to the elbow on physical examination. In addition,
Dr. Abboudi explained that even Dr. Zingerman’s testing for
epicondylitis was negative, which further supports Dr.
Abboudi’s opinion. Finally, his credibility is bolstered by
his logical explanation of the timing of symptoms and how
this leads to a conclusion that these symptoms are not work
related. [The WCJ] notes that both medical experts agree
that Claimant sustained right carpal tunnel syndrome as a
result of the work injury, which is also found to be credible.
9
11. [The WCJ] has carefully reviewed the testimony of
Dr. Zingerman and, to the extent that Dr. Zingerman’s
opinions are contrary to the credible opinions of Dr. Abboudi
related to the alleged lateral epicondylitis, [the WCJ] finds
the same to be neither credible nor persuasive. In making
this determination, [the WCJ] relies on the following: Dr.
Zingerman is not an upper extremity specialist. Dr.
Zingerman did not adequately explain the rational[e] for the
diagnosis of lateral epicondylitis, given that her own physical
examination testing was negative. Dr. Zingerman did not
review any medical records that pre-date her treatment, aside
from diagnostic study reports. Again, [the WCJ] notes that
both medical experts agree that Claimant sustained right
carpal tunnel syndrome as a result of the work in jury, which
is found to be credible.
(FOF 9-11; R.R. at 139a-40a.)
Regarding Claimant’s requested counsel fee, the WCJ found as follows:
Claimant and her counsel have a [Fee Agreement] in the
amount of twenty percent (20%) of Claimant’s indemnity
and medical benefits. The same is approved with respect to
Claimant’s indemnity benefits. However, Claimant’s
counsel’s fee is not approved with respect to future medical
benefits, as these are unknown costs, and [the WCJ] does not
believe it can be demonstrated that Claimant understands her
potential future exposure and liability regarding presently
unknown costs.
(FOF 7; R.R. at 139a.)
Claimant appealed to the Board, which affirmed the WCJ. The Board
concluded that Dr. Abboudi’s medical testimony constituted substantial evidence to
support the WCJ’s finding that Claimant does not suffer from lateral epicondylitis.
(Board Op. at 4-5; R.R. at 148a-49a.) With regard to the WCJ’s limited counsel fee
award, the Board concluded that, because Claimant’s future medical bills are unknown
and speculative, she could not comprehend or anticipate when she executed the Fee
Agreement the actual amounts she could be required to reimburse to her medical
10
providers. Id. at 10-12; R.R. at 154a-55a. Accordingly, and distinguishing this case
from our recent decision in Neves v. Workers’ Compensation Appeal Board (American
Airlines), 232 A.3d 996 (Pa. Cmwlth. 2020) (en banc), the Board concluded that,
notwithstanding the language of the Fee Agreement, Claimant could not agree to a
counsel fee that included 20% of future, unknown medical expenses. Id.Claimant now appeals to this Court.
II. ISSUES
Claimant presents three issues for our review, which fairly can be
condensed into two, namely, (1) whether the Board erred in affirming the WCJ’s denial
of an attorney’s fee based on Claimant’s medical bills; and (2) whether the Board erred
in affirming the WCJ’s determination that Claimant did not suffer lateral epicondylitis
as part of her work-related injury. For ease of analysis, we address the issues in reverse
order.
III. DISCUSSION4
A. Lateral Epicondylitis
Claimant argues that the WCJ’s finding that Claimant does not suffer from
lateral epicondylitis as a result of her work injury is not supported by substantial
evidence and, therefore, is an abuse of discretion. More specifically, Claimant argues
that her medical evidence, chiefly the testimony, report, and diagnostic findings of Dr.
Zingerman, constituted substantial evidence establishing that she suffers from lateral
epicondylitis. (Claimant’s Br. at 21.) Claimant then points out that Dr. Abboudi’s
4
Our review is limited to determining whether constitutional rights have been violated,
whether an error of law has occurred, and whether the WCJ’s findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Crocker v.
Workers’ Compensation Appeal Board (Georgia Pacific LLC), 225 A.3d 1201, 1205 n.6 (Pa. Cmwlth.
2020).
11
opinion that Claimant does not suffer from lateral epicondylitis was based on only a
single physical examination which, Claimant appears to contend, does not constitute
substantial, competent medical evidence upon which the WCJ could rely to make her
findings. (Claimant’s Br. at 22.) We disagree.
Our consideration of Claimant’s argument in this regard is governed by
the following long-held principles:
[I]t is a fundamental tenet of workers’ compensation law
that the WCJ, as fact-finder, has complete authority over
questions of witness credibility and evidentiary weight. For
purposes of appellate review, it is irrelevant whether there
is evidence to support contrary findings; if substantial
evidence supports the WCJ’s necessary findings, those
findings will not be disturbed on appeal. As the ultimate
fact-finder, the WCJ . . . is free to accept or reject the
testimony of any witness, including a medical witness, in
whole or in part.[5] A court may overturn a credibility
determination only if it is arbitrary and capricious or so
fundamentally dependent on a misapprehension of facts, or
so otherwise flawed, as to render it irrational.
Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Mills), 116 A.3d
1157, 1162 (Pa. Cmwlth. 2015) (internal citations and quotations omitted).
“Substantial evidence” is “such relevant evidence as a reasonable person might accept
as adequate to support a conclusion.” West Penn Allegheny Health System, Inc. v.
Workers’ Compensation Appeal Board (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth.
2021) (citation omitted). In determining whether a particular finding by the WCJ is
supported by substantial evidence, “this Court must consider the evidence as a whole,
view the evidence in a light most favorable to the party who prevailed before the WCJ,
5
Moreover, in making these credibility determinations, a WCJ may reject the testimony of
any witness, even where that testimony is uncontradicted. Hawbaker v. Workers’ Compensation
Appeal Board (Kriner’s Quality Roofing Services and Uninsured Employer Guaranty Fund), 159
A.3d 61, 69 (Pa. Cmwlth. 2017) (citation omitted).
12
and draw all reasonable inferences which are deducible from the evidence in favor of
the prevailing party.” Verizon Pennsylvania Inc., 116 A.3d at 1162 n.4 (citing Sell v.
Workers’ Compensation Appeal Board (LNP Engineering), 771 A.2d 1246, 1251 (Pa.
2001), and Waldameer Park, Inc. v. Workers’ Compensation Appeal Board
(Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003)).
Here, the WCJ found Dr. Abboudi’s testimony regarding lateral
epicondylitis to be more credible than that of Dr. Zingerman for several reasons. The
WCJ noted that Dr. Abboudi conducted a physical examination of Claimant and did
not note any indicators of lateral epicondylitis. Dr. Abboudi further reviewed Dr.
Zingerman’s treatment records and noted that only a single examination had results
arguably consistent with lateral epicondylitis, while all of the others, including the
tennis elbow test itself, showed no signs of the condition. The WCJ also noted and
credited Dr. Abboudi’s observation that Claimant did not complain of or treat for elbow
pain close in time to her work injury. Rather, the complaints of elbow pain came much
later, which delay Dr. Abboudi concluded was an indication that the symptoms were
not work related. (FOF 10, 11.) Based on his own observations and the gaps and
weaknesses he observed in Dr. Zingerman’s records and diagnoses, Dr. Abboudi
opined that Claimant’s work-related injury did not include lateral epicondylitis.
Reviewing the record in the light most favorable to Employer, we find
that the WCJ’s credibility determinations in this regard are supported by substantial
evidence and are not arbitrary, capricious, or based on a misapprehension of any facts.
The WCJ thoroughly explained her reasons for crediting Dr. Abboudi’s testimony, and
those reasons are amply supported by the record. Accordingly, we must, and here do,
affirm them.
13
B. Counsel Fees6
Claimant next argues that the WCJ erred in approving a counsel fee
limited to 20% of her indemnity benefits and excluding any portion of her medical
benefits. She asserts that she clearly understood the terms of the Fee Agreement and
that the agreed-upon fee poses no financial risk to her because, pursuant to Section
306(f.1)(7) of the Act, 77 P.S. § 531(7), her medical providers cannot seek to recoup
from her any portion of their future reimbursable medical costs used to pay the fee.
Thus, and relying on this Court’s decision in Neves, she contends that the Board erred
in affirming the WCJ’s decision and order in this respect. We must agree.
Section 442 of the Act, added by the Act of February 8, 1972, P.L. 25, 77
P.S. § 998, authorizes counsel fees limited to no more than 20% of the “amount
awarded.” It provides as follows:
All counsel fees, agreed upon by [a] claimant and his
attorneys, for services performed in matters before any
workers’ compensation judge or the [B]oard, whether or not
allowed as part of a judgment, shall be approved by the
workers’ compensation judge or [B]oard as the case may be,
providing the counsel fees do not exceed twenty per centum
of the amount awarded.
In cases where the efforts of [a] claimant’s counsel produce
a result favorable to the claimant but where no immediate
award of compensation is made, such as in cases of
termination or suspension, the hearing official shall allow or
award reasonable counsel fees, as agreed upon by [the]
claimant and his attorneys, without regard to any per centum.
6
Employer takes no position on the issue of counsel fees and does not address it in its brief.
See Pennsylvania Rule of Appellate Procedure 2112 (“Unless the appellee does so, or the brief of the
appellee otherwise challenges the matters set forth in the appellant’s brief, it will be assumed the
appellee is satisfied with them, or with such parts of them as remain unchallenged.”).
14
In the case of compromise and release settlement
agreements, no counsel fees shall exceed twenty per centum
of the workers’ compensation settlement amount.
77 P.S. § 998.7
In Neves, we considered at length the scope of the Act’s authorization of
counsel fees calculated as a percentage of a claimant’s medical benefits. There we
considered the effect of a written fee agreement providing, in pertinent part, that the
claimant agreed “to pay [his] attorney a sum equal to 20[%] of whatever may be
recovered from [the workers’ compensation] claim.” 232 A.3d at 999. The claimant
in Neves also submitted an affidavit in which he attested that he entered into the fee
agreement with his counsel and understood that it applied to “past due medical
expenses as well as any wage loss benefits.”8 Id. The claimant further acknowledged
in the affidavit his understanding that “providers may seek the balance of the [20%] of
the bill from [him] should they be dissatisfied with the [80%] they will receive.” Id.
Relying on this Court’s decision Piergalski v. Workmen’s Compensation Appeal Board
(Viviano Macaroni Company), 621 A.2d 1069 (Pa. Cmwlth. 1993), the workers’
compensation judge approved the fee agreement only as it applied to the claimant’s
indemnity benefits because the claimant did not present evidence establishing that a
contingent fee on medical benefits was reasonable. Id. at 999-1000. The Board
affirmed.
7
Section 440(a) of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77
P.S. § 996, also authorizes an award of a reasonable sum of counsel fees and other expenses in cases
where a claimant prevails and an employer’s contest of benefits is determined to be unreasonable.
Here, the WCJ found Employer’s contest to be reasonable and, accordingly, determined that “no
unreasonable contest fee will be awarded.” (FOF 14; R.R. at 140a.)
8
The medical expenses in Neves were past-due medical bills from the claimant’s
hospitalization. 232 A.3d at 999.
15
On appeal to this Court, we reversed. We first reviewed the history of
counsel fee awards in workers’ compensation cases and the decisions of this Court
establishing the standards applicable to such awards. Id. at 1000-06. We then stated:
The above-described case law has established several key
principles with respect to a contingent fee agreement
presented to a WCJ for approval under Section 442 of the
Act. First, the counsel fee should be calculated against the
entire award, without regard for whether the award is for
medical or indemnity compensation. Second, the terms of
the fee agreement govern, and it is incumbent upon the
claimant to establish that the parties intended that the counsel
fee be applied to the entire award, including medical
compensation.
Id. at 1005 (internal citations omitted). Applying these principles to the claimant’s fee
agreement, we concluded as follows:
First, [the WCJ] erred by concluding that a medical
compensation award is not part of “the amount awarded,” on
which a counsel fee is calculated under Section 442 of the
[WC] Act. That is contrary to this Court’s precedent that has
held, repeatedly, that “the amount awarded,” as used in
Section 442, means the entire award, without regard for
whether the award is for indemnity or medical compensation
or both.
Second, the fee agreement here expressly provided that [the
c]laimant “agrees to pay his attorney a sum equal to 20[%]
of whatever may be recovered from said claim.” [The WCJ]
awarded [the c]laimant both indemnity and medical
compensation and then found that [c]ounsel was entitled to
“20% of any benefits awarded to be paid as counsel fees”
under the fee agreement. . . .
In an aside, [Koszowski v. Workmen’s Compensation Appeal
Board (Greyhound Lines, Inc.), 595 A.2d 697 (Pa. Cmwlth.
1991),] observed that if 20% of “medical expenses is to be
awarded to [a] claimant’s attorney, then the question arises
as to who is responsible for the balance of medical expenses
due the medical supplier.” [Id.] at 702 n.6. Indeed, the
16
Koszowski concurring opinion observed that there was a
potential conflict of interest between the attorney and his
client on this point and suggested that the conflict be
addressed at the time the fee agreement is made. Here, the
fee agreement addresses these concerns. [The c]laimant
expressly acknowledged in the fee agreement that he may be
liable to the medical provider for the 20% withheld from the
award for [c]ounsel’s fee.
....
We hold that Section 442 does not distinguish between the
type of compensation awarded; does not require an inquiry
into the reasonableness of a 20% fee agreement; and does not
make the amount and degree of difficulty of the work
performed by the attorney relevant. A 20% counsel fee is
per se reasonable.
....
Here, the . . . fee agreement provided that “20% of any
benefits awarded” would be paid as counsel fees, . . . and this
applied to both medical and disability compensation benefits.
The Board erred in holding that a quantum meruit analysis
had to be undertaken with respect to the medical
compensation portion of [c]ounsel’s fee. That requirement
was neither required nor authorized by Section 442 of the
Act.
Id. at 1005, 1006-08 (internal citations, brackets, emphasis, and footnote omitted).9
9
We also noted in Neves that our decision in Koszowski was decided before the enactment of
Section 306(f.1)(7) of the Act, 77 P.S. § 531(5), which “implemented medical cost savings and, inter
alia, prohibited providers from ‘balance billing’ claimants.” Neves, 232 A.3d at 1006 n. 6. Section
306(f.1)(5) provides as follows:
A provider shall not hold an employe[e] liable for costs related to care
or service rendered in connection with a compensable injury under this
act. A provider shall not bill or otherwise attempt to recover from the
employe[e] the difference between the provider’s charge and the
amount paid by the employer or the insurer.
77 P.S. § 531(7). See also 34 Pa. Code. § 127.211(a), (b). Providers may nevertheless dispute the
amount or timeliness of payments from an employer by seeking a fee review from the Department of
(Footnote continued on next page…)
17
In its opinion, the Board acknowledged our decision in Neves, but
distinguished it on the ground that the medical bills in Neves were fixed and had already
been incurred at the time of the hearing before the workers’ compensation judge. Here,
because Claimant’s future medical expenses are speculative and undefined, the Board
determined that those expenses cannot form the basis of the counsel fee award. (Board
Op. at 10-11; R.R. at 154a-55a.) Specifically, the Board held as follows:
Claimant testified she understood that the [F]ee [A]greement
between herself and her counsel included 20[%] of both
wage loss and medical benefits, and that her medical
providers could “theoretically” try to obtain 20[%] of the
medical bills from her. At this point, Claimant’s medical
benefits are speculative and open-ended with the potential to
stretch into the indefinite future. Even though she testified
to her understanding of the [F]ee [A]greement, we conclude
that as a matter of law, Claimant, a layperson, lacks the
sophistication to comprehend or anticipate what might
happen in the future, possibly years down the road, with her
medical treatment or how much money she could actually be
responsible for reimbursing to her medical providers. The
outcome is contrary to the very purpose of the Act, which is
remedial in nature and is intended to benefit workers.
Claimant should not be placed into such a situation
particularly where, as here, her interests and those of her
counsel are potentially in conflict with one another and
Claimant is essentially acting pro se as to any [F]ee
[A]greement issues, and there is no evidence that Claimant’s
medical providers agreed to accept only 80% of the repriced
bills as total payment. In sum, because [of] the differences
between this case and [Neves], the WCJ did not err in
approving the [F]ee [A]greement between Claimant and her
counsel under Section 442 of the Act as to indemnity
benefits, but not medical benefits.
Labor and Industry. Section 306(f.1)(5) of the Act, 77 P.S. § 521(5). See also Neves, 232 A.3d at
1002.
18
(Board Op. at 11-12; R.R. at 155a-56a.)10 In this respect, the Board erred and
misapplied our holding in Neves.
First, the rule from Neves is broad and not limited to only those medical
expenses that have been actually incurred and billed at the time of a hearing before a
workers’ compensation judge. In many cases, including this one, at least a portion of
a claimant’s medical expenses are incurred after the claimant executes a fee agreement
with his or her counsel. Very few claimants, if any, will have a complete and certain
picture of their future medical treatment at the time they retain counsel, and the Board’s
suggestion that a fee agreement, otherwise per se reasonable, is invalid because it is
based on unknown and “speculative” future medical expenses is untenable under Neves
and Section 442 of the Act. We therefore reject outright the Board’s conclusion that,
as a “matter of law,” Claimant could not agree to a 20% fee agreement that applies to
future and yet-unknown medical expenses.11
Second, we plainly acknowledged in Neves the exact risk and potential
conflict of interest identified by the Board regarding who will be responsible for the
balance of medical expenses due to a provider if 20% of the payments are used to pay
a counsel fee. Neves, 232 A.3d at 1006. We noted that the fee agreement in Neves
addressed those concerns via the claimant’s written acknowledgement that he might be
liable to a medical provider for the 20% withheld for counsel fees. Id. Here, the Fee
Agreement includes express language through which Claimant acknowledged that she
10
One Commissioner dissented, concluding that the Fee Agreement was per se reasonable.
(Board Op. at 13; R.R. at 157a.)
11
Claimants’ indemnity benefits can fluctuate and be as unpredictable as their medical
benefits. When executing fee agreements, claimants do not know when or if they will return to work,
if at all, either full- or part-time; nor do claimants know if concurrent employment, supplemental
income, or other circumstances will result in an increase or decrease of the amount and/or duration of
their indemnity benefits.
19
understood that the counsel fee would be calculated based on both her indemnity and
medical benefits and that a provider could, at least theoretically, seek to recover from
her the balance of any unpaid medical bills. (R.R. at 3a.) She also testified, on two
separate occasions, that she executed the Fee Agreement and understood the 20%
counsel fee deduction. These facts are sufficient under Neves and Section 442 of the
Act to validate the Fee Agreement. Any suggestion by the Board that a fixed amount
or quantum meruit analysis is a necessary prerequisite to the enforcement of a fee
agreement applicable to future medical benefits was error.12
Third, Section 306(f.1)(7) of the Act prohibits providers from recovering
from claimants any portion of any costs related to any care or services rendered for a
compensable injury, including the difference between a provider’s charge and the
amount paid by an employer or insurer. 77 P.S. § 531(7). See also Neves, 232 A.3d at
1006 n.6. Claimant acknowledged in the Fee Agreement that she had been advised by
her counsel that, although a medical provider may seek reimbursement from her for
any counsel fees deducted from the payment of medical bills, the providers “cannot
[do] so in accordance with Section 306(f.1)(7) . . . .” (R.R. at 3a.) To our knowledge,
this Court has never directly addressed the question of whether this prohibition on
“balance billing” applies to shield claimants from medical providers seeking to recoup
the 20% counsel fee deducted from an employer’s or insurer’s payments. In Righter,
this Court suggested, again in dicta, that Section 306(f.1)(7) would not prohibit a
medical provider from “balance billing” a claimant for deducted counsel fees. Rather,
12
Along this line, in Neves we distinguished the three-judge panel decision of this Court in
Righter v. Workers’ Compensation Appeal Board (Righter Parking), 141 A.3d 628 (Pa. Cmwlth.
2016), where we concluded that a claimant had not, in fact, agreed to a counsel fee that included 20%
of her indemnity and medical benefits. Righter, 141 A.3d at 628, 633. In Neves, we also noted that
any discussion in Righter of the reasonableness of the fee or the necessity of a quantum meruit
analysis was dicta and, therefore, not controlling. Neves, 232 A.3d at 1005.
20
it would only prohibit providers from billing a claimant for the difference between the
provider’s normal rate and the Medicare-adjusted reimbursement rates established by
the Act. Righter, 141 A.3d at 634.
Upon further review, however, we do not read Section 306(f.1)(7) so
narrowly. Instead, that section states plainly and without qualification that
[a] provider shall not hold an employe[e] liable for costs
related to care or service rendered in connection with a
compensable injury under this act. A provider shall not bill
or otherwise attempt to recover from the employe[e] the
difference between the provider’s charge and the amount
paid by the employer or the insurer.
77 P.S. § 531(7). Thus, Section 306(f.1)(7)’s prohibition on “balance billing” is not
limited to only the difference between a provider’s normal fee and the Medicare-
approved reimbursement rate. Rather, it prohibits a provider from billing a claimant
for any costs related to care provided under the Act and any amounts reflecting the
difference between the provider’s charge and the amount paid. And, as we noted in
Neves, a provider may seek a fee review pursuant to Section 306(f.1)(5) of the Act, 77
P.S. § 531(5). That statutory vehicle, and not private “balance billing” to claimants, is
the mechanism afforded to providers to dispute any portion of an approved fee.
Accordingly, the fact that the Fee Agreement here specifically advised Claimant that
providers might seek to, but nevertheless may not, recover from her the amount paid
as a counsel fee only reinforces our conclusion that she understood the Fee Agreement
and its implications.
Finally, although we acknowledge the competing interests and policy
considerations involved with counsel fee awards, we nevertheless reiterate the
sentiments we first articulated in Neves:
There may be policy reasons . . . to regulate the counsel fee
differently, depending on whether the fee was incurred for
21
pursuing an award of medical compensation as opposed to
indemnity compensation. These policy concerns should be
addressed to the General Assembly. Simply, the wisdom of
the policy behind legislative enactments is generally not the
concern of the court. The Court’s job is to interpret
legislative enactments and not to promulgate them. When a
statute is clear and free from ambiguity, “the letter of it is not
to be disregarded under the pretext of pursuing its spirit.” 1
Pa. C.S. § 1921(b).
Neves, 232 A.3d at 1007-08 (most internal citations and quotations omitted). Here, our
decision in Neves and the language of Section 306(f.1)(7) are clear. A 20% counsel
fee agreement applicable to all workers’ compensation benefits received by a claimant
is per se reasonable. A medical provider that provides medical services to treat a
compensable injury under the Act may not recoup directly from a claimant any portion
of any payment deducted to pay a counsel fee.
IV. CONCLUSION
The Board did not err in affirming the WCJ’s finding that Claimant does
not suffer from lateral epicondylitis. The Board did err, however, in affirming the
WCJ’s award of a counsel fee restricted to a percentage of Claimant’s indemnity
benefits only. We therefore affirm the Board in part, reverse in part, and remand with
instructions to approve the Fee Agreement as written and award a counsel fee equal to
20% of Claimant’s indemnity and medical benefits.
________________________________
PATRICIA A. McCULLOUGH, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patrice Williams, :
Petitioner :
:
v. : No. 277 C.D. 2023
:
City of Philadelphia :
(Workers' Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 21st day of March, 2024, the March 8, 2023 opinion
and order of the Workers’ Compensation Appeal Board (Board) is hereby
AFFIRMED, IN PART, and REVERSED, IN PART. The Board’s order is
AFFIRMED with regard to the description of Patrice Williams’ (Claimant) work
injury. The Board’s order is REVERSED with regard to Claimant’s fee agreement
with her counsel. This matter is remanded to the Board for further remand to the
Workers’ Compensation Judge (WCJ) with instructions to approve, as written, the
fee agreement introduced before the WCJ as Claimant’s Exhibit 3.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge