Injured Workers’ Attorneys Aren’t Swinging the Section 428 Hammer Enough

Taking judgments under Section 428 of the Pa. Workers’ Compensation Act

Section 428 of the Act states that if an employer has defaulted on their workers’ compensation payments to an injured worker for thirty days or more, “the employe or dependents entitled to compensation thereunder” can file a certified copy of the agreement and order approving the worker’s benefits “with the prothonotary of the court of common pleas of any county, and the prothonotary shall enter the entire balance payable under the agreement, award or order to be payable to the employe or his dependents, as a judgment against the employer or insurer liable under such agreement or award.”

A court of common pleas’ judgment under Section 428 “shall be a lien against property of the employer or insurer liable under such agreement or award and execution may issue thereon forthwith.” While a court of common pleas’ order is pending, “no other lien which may be attached to the employer’s property during such time shall gain priority over the lien of such agreement or award.” However, “no execution shall issue on any compensation judgment before the approval of the agreement or the award of compensation on the said petition.” On that point, execution “shall in all cases be for the amount of compensation and interest thereon due and payable up to the date of the issuance of said execution, with costs.” Further execution “may issue from time to time as further compensation shall become due and payable until full amount of the judgment with costs shall have actually been paid.”

Taking judgments while pursuing penalty petitions and fraud claims

When contemplating whether to take judgment under Section 428, claimants’ counsel may consider, or already be, pursuing penalty petitions under Section 435 of the Act. They need not choose between the two; they should pursue both concurrently.

If Section 428 is a hammer, Section 435 is a mallet. The latter allows Workers’ Compensation Judges to penalize employers and insurers for violating the Act, including assessing a penalty five times as large as the default penalty in situations where they cause unreasonable or excessive delays. Section 435 is the Act’s significantly less-imposing little brother to the civil legal system’s punitive damages.

Claimants’ counsel can use Sections 428 and 435 to attack employers’ noncompliance on both flanks. If an employer has ignored a court order to pay workers’ compensation benefits, they’ve violated the Act and should be held accountable, simultaneously, through any and all avenues available to claimants’ counsel under the Act. While taking judgment under Section 428 will likely be the faster path for claimants’ counsel to secure their client’s benefits, a penalty petition seeks compensation for noncompliance with a court order that starts when an employer first ignores the order and continues until the injured worker receives the benefits they’re entitled to.

If an employer’s conduct is grounds for claimants’ counsel to take action under Sections 428 and 435, they may also have grounds to assert a fraud claim under Section 1102 of the Act, which the Pennsylvania General Assembly added in its 1993 amendments. Section 1102(1) states that a party to a workers’ compensation claim commits fraud when it

Knowingly and with the intent to defraud a State or local government agency files, presents or causes to be filed with or presented to the government agency a document that contains false, incomplete or misleading information concerning any fact or thing material to the agency’s determination in approving or disapproving a workers’ compensation insurance rate filing, a workers’ compensation transaction or other workers’ compensation insurance action which is required or filed in response to an agency’s request.

Section 1102(8) adds that a party also commits fraud when it “makes or causes to be made any knowingly false or fraudulent statement with regard to entitlement to benefits with the intent to discourage an injured worker from claiming benefits or pursuing a claim.” Violations of Section 1102 are third-degree felonies, and can come with fines of not more than $50,000 or “double the value of the fraud.”

Unfortunately, I have seen firsthand employers and insurers file false documents with the Pa. Bureau of Workers’ Compensation that ran afoul of both sections 1102(1) and 1102(8), which could also subject the perpetrators to criminal fraud liability. I’m not the only claimants’ counsel who’s experienced this. We, as claimants’ counsel, must use these tools and any others to hold employers and insurers accountable for violating the Act, and to reinforce to Workers’ Compensation Judges and other Bureau of Workers’ Compensation personnel that they must hold them accountable as well.

It should go without saying that claimants’ counsel can’t let the collegiality within the workers’ comp bar interfere with their duties to their clients

Taking judgments under Section 428, invoking the Act’s antifraud provisions, and filing penalty petitions are drastic measures, but they’re ones claimants’ counsel must take to keep employers’ counsel honest and fight the prevailing culture in the workers’ compensation bar that collegiality trumps aggressive representation of clients.

Over my four decades practicing within the bar, I’ve seen time and again claimants’ counsel refuse to hold employers’ counsel’s feet to the fire in the name of collegiality. There’s a culture among some claimants’ counsel that they won’t take seriously the delays and underhanded litigation tactics employed by employers’ counsel because they don’t want to be seen as too aggressive, or, in their minds, damage their relationship with those counsel and jeopardize their ability to settle future cases those counsel are involved in.

But collegiality can never be the reason claimants’ counsel don’t use every tool in their toolbox to get the best results for their clients. Two professional athletes don’t go easy on each other during games because they have a relationship with each other off the field. Neither should we as professionals representing those injured and in need, especially with the ethical duty we have to zealously protect and pursue a client’s legal interests.

Taking judgments under Section 428 of the Act is the hammer in claimants’ counsels’ toolbox; a hammer they should not be afraid to wield.

Early in my career, I took judgment under Section 428 against a very large corporation in a client’s case. Doing so did not make me popular with the corporation’s counsel, its executives, or, for that matter, its rank-and-file employees. But it secured the benefits my client was entitled to that the corporation had failed to pay.

It didn’t—and still doesn’t—matter what counsel thought of me or my aggression during that process. The only thing that mattered was acting in the best interests of our client to secure a result I was ethically bound to pursue.

​​Samuel H. Pond is the managing partner of Pond Lehocky Giordano, Inc., the largest workers’ compensation and social security disability law firm in Pennsylvania, and one of the largest in the U.S. He can be reached at spond@pondlehocky.com.

Reprinted with permission from the March 5, 2026 edition of The Legal Intelligencer © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.