Willfully Blind Workers’ Comp Defense Counsel Should Refrain From Tortious Interference In the Contractual Relationship Between Attorneys And Their Clients

In light of two Pennsylvania Commonwealth Court decisions, Neves v. Workers’ Comp. Appeal Bd. (Am. Airlines), 232 A.3d 996 (Pa. Cmwlth. 2020), and Williams v. City of Phila. (Workers’ Comp. Appeal Bd.), 2024 Pa. Commw. LEXIS 89, workers’ compensation claimants’ attorneys run into attempted interference in their contractual relationship with their clients too often regarding the legal fees they are entitled to under Pennsylvania law.

The means used to obstruct the approval of the fee are not only flawed litigation tactics but arguably rise to the level of tortious interference. While some choose to be willfully blind to the plain language of Section 442 of the Pa. Workers’ Compensation Act, as well as its clear interpretation in Neves and Williams, we call on the Pa. Workers’ Compensation Defense Bar to abstain from tortious interference with contractual relationship between injured workers and their attorneys under the pretext of a “greater good.” We would respectfully suggest that judges must be proactive in not allowing this tort.

The Neves-Williams one-two punch

Neves made several clear holdings. First, fees under Section 442 are different from fees under Section 440 (for unreasonable contests): “Section 442 of the Act . . . does not require that a 20% counsel fee on a medical compensation award be shown as reasonable.”

Second, “Section 442 of the Act provides, in plain terms, that the [Workers’ Compensation Judge (WCJ)] must approve ‘all counsel fees, agreed upon by claimant and his attorneys, for services performed in matters performed before any [WCJ] or the board . . . providing the counsel fees do not exceed twenty per centum of the amount awarded.’”

Third, a “20% counsel fee is per se reasonable.”

The court also embraced an analogy made by the claimant to subrogation: “[A] medical provider that benefits from the efforts of a claimant’s counsel cannot expect to be excused from paying a fair share of the counsel fees.”

Thus, Neves leaves no doubt: a 20% attorney fee on medical bills is reasonable per se. End of discussion.

On March 21, 2024, the Commonwealth Court had to issue another decision with a clear message: “We meant exactly what we said in Neves.” In Williams, the Court rejected the Workers’ Compensation Appeal Board’s (WCAB) conclusion that the claimant could not agree to a 20% fee agreement that applies to future and yet-unknown medical expenses. In doing so, it held that the ruling from Neves is broad and not limited to medical expenses that have already occurred.

Second, the Williams court held that Section 306(f.1)(7) of the Pa. Workers’ Compensation Act is not limited to prohibiting a medical provider from billing the difference between the provider’s charge 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.”

As it did in Neves, the Commonwealth Court again felt compelled to call out the litigators and decision makers to leave the job of the General Assembly to the General Assembly, quoting its Neves decision that “[w]hen a statute is clear and free from ambiguity, ‘the letter of it is not to be disregarded under the pre-text of pursuing its spirit.’”

Workers’ compensation defense counsel try—unsuccessfully—to skirt unambiguous case law

Faced with case law that makes it clear 20 percent contingency fees are per se reasonable, workers’ compensation defense counsel try to insert themselves into the sacred relationships injured workers have with their counsel and try to disrupt the relationships these workers have with their treating physicians.

First, defense counsel will often inappropriately (i.e., lacking relevance) interrogate injured workers on cross-examination regarding their fee agreement with their counsel, in violation of attorney-client privilege, often by using speculative questions. Defense counsel might ask, “Has your attorney explained to you, that if, let’s say, ten years from now, his firm goes out of business and is unable to represent you against a medical provider who is suing you for the 20 percent difference in their bill, you might be on the hook for that money, along with additional penalties?” A first-year law student would spot an infringement on attorney-client privilege here, along with speculation and form-of-the-question issues, and would properly object to the question. Neves and Williams make it clear that a 20 percent contingency fee on all benefits—including medical benefits—is per se reasonable. Those decisions also make it clear the defense has no exposure or liability. Thus, any examination lacks relevance and is a tort.

Second, defense counsel will often question treating physicians during their expert witness testimony on voir dire regarding the fee agreement between the injured worker and claimant’s counsel, and their willingness to accept 80 percent of their bill. In that scenario, defense counsel (party D) asks questions of a doctor (party C), that is not represented by counsel, regarding their understanding and agreement with the contract between a claimant’s attorney (party B) and the claimant (party A). One would ask: What is the relevance of any potential answer in light of Neves and Williams? Nobody knows since, as stated, the defense has no liability.

Despite such questioning, defense counsel seemingly lacks the constitutional prerequisite of standing to lodge an objection to these 20 percent per se reasonable fee amounts. While standing is usually viewed as a key to the courtroom door and is used by busy courts to dismiss half-baked claims, it is also used to preclude lodging an objection. (Brown v. United States, 411 U.S. 223 (1973)). A party can only lodge an objection if it has standing; otherwise, the party lacks the basis to object.

To secure standing, defense counsel would need to show, among other things, that its legal right was violated and resulted in an injury-in-fact. When an injured worker (party A) contracts with their attorney (party B) to pay 20% of all benefits, which includes medical benefits awarded by a judge and provided by a medical provider (party C), obviously a defense attorney that represents only an employer and/or insurer (party D) lacks standing to object to the contract. No employer’s or insurer’s legal right was violated. In addition, there is no injury-in-fact suffered by defendants.

The 20 percent fee that is reasonable per se for medical bills paid is the same as those for the award of retroactive and prospective indemnity. There is no difference.

In cases where the defense engages in multiple similar violations, such conduct rises to the level of tortious interference with the contractual relationship between an injured worker and their attorney.

What’s the motivation here?

The real question becomes why are defense attorneys behaving in this fashion? Some would say they are jealous. That is nonsense. They are professionals bound by an oath and rules of professional responsibility. This is simply not the case. In fact, if they were so jealous, they could simply start doing claimants-side work.

So why? What is the motivation to run the risk of a tortious interference claim?

It’s about money and the profits of the insurance industry. Right now, insurance carriers know injured workers will not be able to find a doctor, or get medical treatment, without the assistance of an attorney. We need look no farther than the federal workers’ compensation system and Social Security Disability Insurance in the period before attorneys were awarded fees to understand the plight of injured and disabled Americans who did not have access to legal representation when seeking benefits they were legally entitled to.

As veterans of the Pennsylvania workers’ compensation system know, injured workers could find very few attorneys to represent them before 1986 and the Eastern District of Pennsylvania’s decision in Baksalary v. Smith. Awarding attorneys’ fees via a supersedeas decision not only increased injured workers’ access to attorneys, but it also increased the quality of representation.

We continue to scratch our heads in bewilderment and utter disappointment with the many individuals who don’t seem to understand the benefit of Baksalary, Neves, and now Williams to injured workers. This resistance only causes challenges to injured workers seeking legal representation to recover medical expenses. This pushback is hurting claimants by not helping them get the medical care they need.

There is no harm or risk to them having someone help them secure this care at no cost to them. It costs injured workers not one penny. In fact, lack of attorney involvement only makes the system less efficient for most of the parties involved.

The bottom line is that Neves and Williams enable injured workers to more easily secure legal representation for the recovery of medical benefits, while also encouraging medical providers to participate in the workers’ compensation system, knowing attorneys will actively pursue payment of outstanding medical bills.

Neves and Williams promote fairness, protection, and efficiency in the Pennsylvania workers’ compensation system. They ensure injured workers get the medical attention they need, while maintaining, if not increasing, the number of medical providers willing to treat those workers.

​​Samuel H. Pond is the managing partner of Pond Lehocky Giordano LLP, the largest workers’ compensation and social security disability law firm in Pennsylvania, and one of the largest in the U.S. Vladimir Dorash is a workers’ compensation attorney at the firm. They can be reached at and, respectively.

Reprinted with permission from the May 17, 2024 edition of The Legal Intelligencer © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or

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