Pond Lehocky Stern Giordano Founding Partner Jerry Lehocky and associate Susan Nanes recently won an appeal in Pennsylvania Commonwealth Court in a dispute over attorney fees in a workers’ compensation matter.

A three-judge appeals panel held that the Workers’ Compensation Appeal Board (WCAB) had appropriately awarded the entire attorney fee to Jerry. The panel found that another attorney, who had previously done work on the case but had been fired by the client three years before a final settlement was negotiated, was not entitled to a cut of the fee.

“An attorney discharged prior to the time a settlement is reached is not entitled to an additional proportionate share of a contingent from settlement proceeds based on the relative contributions of the attorney,” Judge Robert Simpson wrote for the court. “Stated otherwise, attorneys do not accrue vested interests in their client’s actions.

The case involved a worker who was injured on the job in June 2008. The employer eventually acknowledged the injury, accepting it as compensable. He returned to work for a time, but the injury’s effects lingered making it impossible for him to continue. He hired attorney Matthew Wilson of Martin Law in July 2010. Wilson filed no petitions on the claimant’s behalf and his entire representation consisted of two mediation conferences, which resulted in settlement offers that were rejected by the claimant.

In 2013 the claimant discharged Wilson and hired Jerry. When Jerry took over the case, all previous offers had been rescinded. During the case, Jerry negotiated a stipulation and won a decision on a review petition–both accepting more comprehensive injuries.

In August 2017, after settlement negotiations resumed, the parties reached a compromise and release agreement resolving the case. However, the workers’ compensation judge awarded the lion’s share of the attorney fee to Wilson, placing particular importance on the settlement offers made years earlier. Wilson claimed that the highest earlier offer exceeded the amount eventually accepted, but that was disputed by the employer’s counsel.

On appeal, the WCAB overturned the attorney fee award, finding that Jerry was entitled to the entire amount. Wilson appealed.

The Commonwealth Court panel noted that by the time the final settlement had been negotiated, Wilson had not been involved in the case for more than three years. Also, the court found it significant that no offer on the table when Jerry restarted the negotiations.

Wilson had a contingent fee agreement with the claimant, and that contingency—either through an award or judge’s decision–had never occurred. Thus, a fee was not earned, the appeals panel held.




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