In Piergalski, CC stated ““[W]hile 20 [percent] of a claimant’s medical expenses could be awarded as attorney’s fees, [] 20 [percent] of [a claimant’s] medical expenses should 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, QM style, (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. See Raulston v. Workmen’s Comp. Appeal

Bd. (Tri-State Motor Transit), 606 A.2d 668, 670 (Pa. Cmwlth. 1992).

Here, WCJ found that CFA did not include express promise of fee on top of medicals, and that LP did not establish that any particular work performed “specifically advanced” payment of medicals so as to warrant 20% on top.  Pitt argues that the inquiry should focus on the amount of work performed in the case as a whole, not only with regard to payment of the medical bills.

The commonwealth court ruled no. In this case, the medical expenses and out-of-pocket costs at the close of the evidentiary record were $187,893.06; 20 percent of which comes to $37,578.61. (FOF¶ 9; Summary of Medical Bills, Ex. C-3.) Because Employer has already paid most of the medical expenses to Claimant’s medical providers, (FOF ¶ 11; Payment Screens, Ex. D-1), and there is no evidence in the record that Counsel has a separate agreement with Claimant’s medical providers to receive a portion of the medical bill payments from them, the attorney’s fee will presumably have to be paid by Claimant.

CC realizes that med only cases come with fewer incentives for counsel, but notes that a fee on meds may be found reasonable in that context, as well as possible QM, and also the intangible pluses of pro bono representation and potential future referrals.

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