IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny

, :

:

Petitioner :

:

v. : No. 82 C.D. 2016

: Argued: November 14 , 2016

Workers’ Compensation Appeal : Board (Parker), :

: Respondent :

Harold Parker

, :

:

Petitioner :

:

v. : No. 112 C.D. 2016

: Argued: November 14 , 2016

Workers’ Compensation Appeal : Board ( County of Allegheny ), :

: Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE JOSEPH M. COSGROVE

, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: December 20 , 201 6

These consolidated matters are cross

- petitions for review filed by

County of Allegheny (Employer) and Harold Parker (Claimant) appealing an order

of the Workers’ Compensation Appeal Board (Board) t h at affirmed a decision and

order of a Workers’ Compensation Judge (WCJ) deny ing Employer’s petition for an

order directing Claimant’s counsel (Counsel) to refund unreasonable contest2

attorney fee s and denying Counsel’s request for further attorney fees

. For the

reasons set forth below, we reverse the denial of Employer’s petition and remand

this matter with instructions to enter an order directing Counsel to refund to

Employer the $14,750 in unre asonable contest attorney fees that Employer was

erroneously ordered to pay Counsel and we affirm the Board ’s order insofar as it

denied Counsel’s request for additional fees

.

The Board and WCJ orders at issue here arise out of a successful 2007

suspensio n petition filed by Employer concerning a work

- related 1993 shoulder

injury for which Claimant was receiving total disability benefits , 2009 and 2011

Board decisions reversing the suspension and awarding counsel fees, and a 2012

decision of this Court reve rsing the Board’s decisions

, County of Allegheny (Shuman

Center) v. Workers’ Compensation Appeal Board (Parker)

, (Pa. Cmwlth. , Nos. 2200

C.D. 2011 and 2278 C.D. 2011, filed September 18, 201 2 ) (Reproduced Record

(R.R.) at 189a

- 212a )

. I n June 2007, Employe r filed a petition to suspend Claimant’s

disability benefits on the ground that Claimant was offered and refused a job within

his work restrictions and had voluntarily withdrawn from the workforce. ( County of

Allegheny (Shuman Center)

, slip op. at 4, R.R. at 192a ; 2008 WCJ Decision Finding

of Fact ( F.F. ) ¶ 1(A)

, R.R. at 50 a .) Employer based this petition on medical

evidence from examinations between 2005 and 2007 and on Claimant’s rejection of

a light

- duty position offered in 2007 that was different from m odified duty positions

that Employer had previously offered to Claimant

. ( County of Allegheny (Shuman

Center) , slip op. at 5

- 7, 15

- 19, R.R. at 193a

- 195a, 203a

- 207a; 2008 WCJ Decision

F.F. ¶¶ 4

- 6

, R.R. at 5 3 a

- 56a .) On April 23, 2008, a WCJ issued a decisi on and order

granting Employer’s suspension petition , finding that Claimant, who was 80 years

old at the time

, had failed to follow through in good faith on a job referral within his3

physical limitations from his shoulder injury and had completely withdraw n from

the workforce as a result of his age and medical conditions unrelated to his shoulder

injury

. (2008 WCJ Decision, R.R. at 48a

- 5 8a.)

Claimant appealed this decision to the Board. On June 24, 2009, the

Board reversed on the ground that Employer was barred by collateral estoppel base d

on a 2004 WCJ decision denying a n earlie r suspension petition, held that Claimant

was entitled to unreasonable contest attorney fees, and remanded the case to the

WCJ to determine the amount of those fees . ( County of A llegheny (Shuman Center)

,

slip op. at 8, R.R. at 196a; 2009 Board Opinion at 3

- 7

, R.R. at 62a

- 66a .) Employer

sought to appeal the Board decision to this Court, but this Court dismissed

Employer’s petition for review as premature because of the remand . (8 /17/09 Order

in No. 1450 C.D. 2009

, R.R. at 67a.) On remand, the WCJ awarded Counsel

attorney fees for time expended in the litigation of the 2007 suspension petition

before the WCJ

. (2009 WCJ Decision, R.R. at 68a

- 71a.) O n October 27, 2011, the

Board

, following appeals by both Employer and Claimant, modified the attorney fee

award and ordered Employer to pay Counsel attorney fees both for the work done

before the WCJ on the suspension petition and also for Counsel’s work on the

appeal from the 2008 WCJ Decision

. ( 2011 Board Opinion at 2

- 4, 6, R.R. at 85a

87a, 89a .)

On November 23, 2011, Employer timely filed a petition for review of

the 2011 Board decision

, appealing to this Court both the Board’s 2009 reversal of

the 2008 WCJ decision , which was now f inal and appealable, and the award of

unreasonable contest attorney fee s

. (Employer Br

. in 2200 C.D. 2011/2278 C.D.

2011 Appeal at 4, 12

- 28, 31

, R.R. at 100a, 108a

- 124a, 127a .) Employer sought a

supersedeas pending this appeal as to both compensation pay ments and the attorney4

fees, but it s applications for supersedeas were denied in their entirety. (2014 WCJ

Decision at 4

- 5 F.F. ¶ 7 ; 12/22/11 Board Order, R.R. at 188a; 2/8/12 Order in No.

2200 C.D. 2011

, R.R. at 174a.) I n February 2012, following this Co urt’s denial of

supersedeas, Employer paid Counsel unreasonable contest attorney fees of $14,750

in compliance with the Board’s 2011 order

. (2014 WCJ Decision at 5 F.F. ¶ 7;

Application for Supersedeas Fund Reimbursement, R.R. at 225a, 228a.)

On Septemb er 18, 2012, this Court reversed the Board’s 2009 and 2011

decisions

. T h e Court ruled that Employer’s 2007 suspension petition was not barred

by collateral estoppel because the issues were not the same as in the 2004 WCJ

decision and that the Board erred in reversing the suspen sion of Claimant’s benefits.

( County of Allegheny (Shuman Center) , slip op. at 13

- 21

, R.R. at 201a

- 209a.) In

addition, th e Court ruled that the Board erred in awarding unreasonable contest

attorney fees because a claimant can recov er attorney fees under the Work ers’

Compensation Act 1 only if he is the prevailing party. ( Id. at 22

- 23, R.R. at 210a

211a.) Claimant petitioned the Pennsylvania Supreme Court for allowance of

appeal and that petition was denied. County of Allegheny (Sh uman Center) v.

Workers’ Compensation Appeal Board (Parker)

, 70 A.3d 812 (Pa. 2013). After the

denial of Claimant’s petition for allowance of appeal, Employer filed an application

with the Bureau of Workers’ Compensation (Bureau) for Supersedeas Fund

reim bursement of both the $ 106,999.62 in compensation paid to Claimant and to

Counsel under his contingent fee agreement as a result of the Board’s 2009 decision

and the $ 14,750 in unreasonable contest attorney fees paid to Counsel as a result of

1 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 2501

- 2708. Sections 440 and

443 of the Workers’ Compensation Act , discussed herein, were added by the Act of February 8,

1972, P.L. 25

.5

the Board’s 2 009 and 2011 decisions. ( 2014 WCJ Decision at 6 F.F. ¶ 7;

Application for Supersedeas Fund Reimbursement, R.R. at 224a

- 232a .) The Bureau

approved only reimbursement of $106,999.62

, and denied Employer’s request for

the $14,750 in unreasonable contest atto rney fees because such fees are not

re imbursa ble under Section 443 of the Work ers’ Compensation Act

, 77 P.S. § 99 9

.

(2014 WCJ Decision at 6 F.F. ¶ 7; 12/13/13 Bureau Letter, R.R. at 235a.)

Because reimbursement was not available from the Supersedeas Fun d,

Employer filed the petition that is the subject of this appeal, seeking an order

requiring Counsel to refund the $14,750 in unreasonable contest attorney fees. The

WCJ assigned to this petition held a hearing at which Employer introduced in

evidence d ecisions and other documents in the case from the 2008 WCJ decision

through the decision on Employer’s request for Supersedeas Fund reimbursement

and Counsel asserted a request for unreasonable contest fees in opposing

Employer’s petition for refund

. ( Hea ring Transcript , R.R. at 18a

- 44a .) On October

20, 2014, the WCJ denied Employer’s petition

. The WCJ reject ed Claimant’s

contention that Employer had waived its argument that it was entitled to a refund,

but hel d that there was no clear precedent for an o rder requiring return of

unreasonable contest attorney fees and that such an order would deter attorney fee

request s. (2014 WCJ Decision Conclusions of Law (C.L.) ¶¶ 2

- 3 .) The WCJ

concluded that “Claimant ’ s counsel may voluntarily return the fees awarded

pursuant to ethical and moral principles, but he will not be ordered to do so.” ( Id.

C.L. ¶ 6.) The WCJ also denied Counsel’s request for unreasonable contest fees on

the ground that Employer’s petition was a good faith dispute over an unsettled issue6

of law. ( Id. C.L. ¶ 4.) Employer and Claimant timely appealed and on December

22, 2015, the Board affirmed. Th e s e appeal s followed. 2

Employer argu es that under this Court’s decision in Barrett v. Workers’

Compensation Appeal Board (Sunoco, Inc.) , 987 A .2d 1280 (Pa. Cmwlth. 2010) , it

can recover from Counsel the invalid unreasonable contest attorney fees award that

it was required to pay to him and that the WCJ and Board therefore erred in denying

its petition for refund

. We agree.

In Barrett , this C ourt held that where litigation costs are awarded and

are paid by the employer as a result of denial of a stay and the award of costs is later

reversed on appeal

, the employer is entitled to an order requiring the claimant’s

counsel to repay the erroneousl y awarded costs. 987 A.2d at 12 9 0

. The Court

concluded that allowing counsel to retain costs to which he was not entitled would

result in an unjust enrichment and would deprive the employer of any meaningful

appeal from an erroneous costs award because l itigation costs cannot be recovered

from the Supersedeas Fund. Id. The Court further concluded that such a

reimbursement order did not impose hardship on the claimant because no recovery

of compensation benefits was sought from anyone and the reimburseme nt was

sought from the claimant’s counsel, not from the claimant

. Id. (noting that “ our

jurisprudence forbidding the return of overpayment of compensation benefits by a

claimant has no relevance here because litigation costs, not compensation benefits,

ar e at issue ” and that “[i] t is [c] laimant’s counsel that will be affected, not

[c] laimant, and it will not affect [c] laimant’s compensation benefits ”) (footnote

2 O ur review is limited to determining whether an error of law was committed

, whether the WCJ’s

necessary findings of fact are supported by substantial evidence or whether constitutional rights or

Board procedures were violated. Barrett v. Workers’ Compensation Appeal Board (Sunoco, Inc.)

, 987 A.2d 1280

, 1286 n.11 (Pa. Cmwlth. 2010)

.7

omitted). The Court, accordingly, held that where the employer has been

erroneously ordered to pay litigation costs, “ the WCJ can order [c] laimant’s counsel

to refund the overpayment .” Id. Following Barrett , this Court has upheld WCJ

order s requiring counsel for claimants in other cases to reimburse costs awarded for

claims on which the claimants did not prevail. See Daniels v. Workers’

Compensation Appeal Board (Giancarli Construction Co.) , (Pa. Cmwlth., No. 1299

C.D. 2015 , filed Feb. 4 , 2016 ), slip op. at 5

, 2016 WL 453504 at * 3 ; Lewis

- Briggs v.

Workers’ Compensation Appeal Board (Dep ar t ment of Public Welfare) , (Pa.

Cmwlth., No. 1785 C.D. 2012 , filed Nov. 8, 2013 ), slip op. at 7

- 8

, 2013 WL

5973939 at * 4

. 3

Although Barrett involved non

- attorney fee litigation costs, our

reasoning in Barrett is equally applicable to the unreasonable contest att orney fees

here and compels the conclusion that Employer is entitled to an order requiring

Counsel to refund the $14,750 that he was erroneously awarded. Every factor on

which this Court based its holding in Barrett is present here. Awards of non

attorne y fee litigation costs and unreasonable contest attorney fees are made under

the same section of the Work ers’ Compensation Act , Section 440, which provides :

In any contested case where the insurer has contested liability

in whole or in part, including cont ested cases involving

petitions to terminate, reinstate, increase, reduce or otherwise

modify compensation awards, agreements or other payment

arrangements or to set aside final receipts, the employe or his

dependent, as the case may be, in whose favor the matter at

issue has been finally determined in whole or in part shall be

awarded, in addition to the award for compensation, a

reasonable sum for costs incurred for attorney’s fee, witnesses,

3 Daniels and Lewis

- Briggs are unreported decisions. These decisions are therefore not binding

precedent, but are considered by the Court for their persuasive value. 210 Pa. Cod e § 69.414(a).8 necessary medical examination, and the value of unreimbursed

lo st time to attend the proceedings : Provided, That cost for

attorney fees may be excluded when a reasonable basis for the

contest has been established by the employer or the insurer

.

77 P.S. § 996 (a) (emphasis added)

. Indeed, Section 440 includ es unreasonable

contest attorney fees as a type of litigation cost. While awards of attorney fees are

subject to additional re quirement s not applicable to other costs, both unreasonable

contest attorney fees and other litigation costs are payment “ in addi tion to the award

for compensation ,” not payment of compensation benefits, and both are equally

limited to claimants “ in whose favor the matter at issue has been finally

determined .” Id. Therefore, as in Barrett , an order to refund unreasonable contest

a ttorney fees involves no repayment of compensation benefits and denying a refund

order result s in the same unjust enrichment of allowing an unsuccessful claimant ’s

counsel to keep funds that may only be awarded where the claimant is the

prevailing party.

T he lack of any other remedy is also the same for unreasonable contest

attorney fees as it is for other costs. Because Supersedeas Fund reimbursement is

limited to “payments of compensation,” 77 P.S. § 99 9 (a) , only disability and

medical payments can be recovered and an employer , following a successful appeal,

has no recourse from the Supersedeas Fund for either unreasonable contest attorney

fees or other litigation costs. Universal AM

- CAN, Ltd. v. Workers’ Compensation

Appeal Board (Minteer) , 870 A.2d 961 , 966

- 67 (Pa. Cmwlth. 2005)

. Finally, as in

Barrett , the order sought by Employer here would require only that Counsel refund

money that he received and would not require any payment from Claimant

.

Claimant and amicus curiae Pennsylvania Association for Justice

(Amicus) argue that unreasonable contest attorney fees should be treated differently9

from other litigation costs because counsel for claimants may pay such fees or a

portion of the fees to the claimant

. T h i s argument has no merit here. There is no

dispute that Counsel ha s not paid any of the $14,750 to Claimant and there is no

evidence or claim that Counsel ’s fee agreement with Claimant imposes a legal

obligation on Counsel to pay any of the unreasonable contest attorney fees to

Claimant. Ra ther, Counsel contends only that at some point in the future he

“ intends to ” pay some or all of the unreasonable contest attorney fees to Claimant to

reimburse contingen t fee s which had been deducted from Claimant’s compensation.

(Respondent

- Cross

- Petitio ner’s Br. at 4, 7, 12

. ) Any benefit to Claimant from

allowing Counsel to retain the fees here is thus, at most, speculative.

Moreover, even if Claimant would receive a future payment from the

unreasonable contest attorney fees, that would not be ground s for denying a refund

to Employer of the erroneously awarded fees . Claimant was paid over $106,000 in

compensation for a period when his benefits should have been suspended, of which,

after deduction of the 20% contingent fee paid to Counsel

, Claimant re ceived over

$84,000. Employer’s petition does not require Claimant or Counsel to return any of

that overpayment. Denying Claimant an additional payment

, above th e

overpayment that he has already received and will retain

, does not deprive Claimant

of full payment of any compensation to which he was entitled

.

Claimant and Amicus also argue that reimbursement would have a

chilling effect on the representation of claimants and the seeking of unreasonable

contest attorney fees. This argument li kewise fails. There is no showing that

reimbursement of unreasonable contest attorney fees creates any special hardship or

any greater difficulties than the reimbursement of other litigation costs ordered in

Barrett . While reimbursement of unreasonable c ontest attorney fees may alter tax10

liability for past years, that would be equally true where counsel must repay other

erroneously awarded costs, as those payments of costs would presumably have

reduced counsel’s expenses and increased taxable income in th ose years. 4 In any

event, if a claimant’s counsel feels that refunding erroneous payments or escrowing

them pending appeal create an unacceptable burden, counsel can avoid that burden

by consenting to a stay of the award of unreasonable contest counsel fe es during the

pendency of an appeal.

A llowing retention of improperly awarded unreasonable contest

attorney fees is neither necessary nor appropriate to the protect ion of claimants ’

rights to obtain compensation to which they are entitled

. An order to re turn fees

erroneously awarded for unsuccessful litigation does not reduce counsel’s ability to

recover unreasonable contest attorney fees for successful claimants who are entitled

to those fees nor does it reduce the amount of the fees received where unrea sonable

contest attorney fees are validly awarded. Moreover, WCJs have the ability and

duty to award unreasonable contest attorney fees sua sponte under Section 440

where a claimant’s counsel fails to request such fees

. Ramich v. Workers’

Compensation Ap

peal Board (Schatz Electric, Inc.) , 770 A.2d 318, 321

- 25 (Pa.

2001). D enying reimbursement of erroneously awarded fees compensate s counsel

and claimants for seeking benefits and fees to which they are not entitled , rather

than enhancing the fee award for valid claims or facilitating the ability to obtain

valid fee awards

. T he purpose of Section 440 is “ to discourage unreasonable

4 Indeed, Counsel’s protestations that subsequent adjustments to income from repayment of

unreasonable contest attorney fees would “present a tax and accounting nightmare” (Respondent

Cross

- Petitioner’s Br. at 9) are contradicted by his repr esentations that he intends to pay some or

all of those fees to Claimant in the future and is therefore evidently willing and able to make

adjustments to the fees years after they were received.11

contests of workers’ claims by employers and to ensure that successful claimants

receive compensation benefits undiminished by t he costs of litigation ,” Ramich , 770

A.2d at 323 (emphasis added), not to reward counsel and claimants who have

pursued unmeritorious claims and legal positions

.

Claimant also argues that Barrett should not apply to attorney fees

beca use this Court held in Pittsburgh Board of Education v. Work m e n’ s

Compensation Appeal Board (Smith) , 613 A.2d 99 (Pa. Cmwlth. 1992)

, and Sciulli

v. Work m e n’ s Compensation Appeal Board (Health Center Hospital Service Corp.)

,

615 A.2d 920 (Pa. Cmwlth. 1992)

, that claimants’ counsel w ere entitled to attorney

fees despite the fact that the claimants were not successful in the litigation . We do

not agree. As Claimant concedes, Pittsburgh Board of Education and Sciulli

involved contingent fees paid out of the c laimants’ compensation benefits, not

unreasonable contest fees. Counsel were entitled to the fees , not because they were

attorney fees, but because the y were compensation payments that the employers

were required to make to claimants until there was an or der terminating or

suspending benefits

, regardless of whether the claimants prevailed in the litigation

,

and the employers could recover the overpayments from the Supersedeas Fund.

Sciulli , 615 A.2d at 923 ; Pittsburgh Board of Education , 613 A.2d at 100

- 0 1 & n.2

.

Unreasonable contest attorney fees under Section 440 , in contrast, are not

compensation payments, can only be awarded to a successful claimant, and cannot

be reimbursed by the Supersedeas Fund. Pittsburgh Board of Education and Sciulli

therefore have no applicability here.

Finally, Claimant contend s that Employer waived its right to seek a

refund of the unreasonable contest attorney fees in its 2011 appeal to this Court.

That is without merit. Employer was not required to obtain an order fro m this Court12

before filing its petition for refund of unreasonable contest attorney fees. As this

Court held in Barrett , a WCJ has the authority to issue such an order. 987 A.2d at

12 9 0 ; Daniels , slip op. at 5, 2016 WL 453504 at *3; Lewis

- Briggs , slip op . at 7

- 8,

2013 WL 5973939 at *4. Until this Court reversed the Board’s 2009 decision on

September 18, 2012 , Employer had no basis for filing a petition for refund. In any

event, Employer fully raised the issue of refund of the attorney fee award in its 2 011

appeal. Employer did not pa y the unreasonable contest attorney fees to Counsel

until February 2012, after it filed its petition for review and after its applications for

stay were denied. In its brief in th e 2011 appeal filed on February 29, 2012, it s first

filing after the fees were paid to Counsel, Employer specifically addressed the issue

of refund and argued that it would be entitled to a refund of the unreasonable contest

attorney fees under Barrett if the Court reversed the Board’s 2009 decision

.

(Employer Brief in 2200 C.D. 2011/2278 C.D. 2011 Appeal at 27

- 28, R.R. at 123a

124a.)

For the foregoing reasons, we conclude that the WCJ and the Board

erred in denying Employer’s petition for an order directing Counsel to refund the

unreasonable conte st attorney fees that were erroneously awarded in this case. We

therefore reverse and remand this matter with instructions to grant Employer’s

petition and order Counsel to refund to Employer the $14,750 in unreasonable

contest attorney fees that Employer paid to Counsel. With respect to Claimant’s

cross

- appeal, we affirm the WCJ’s and Board’s denial of Claimant’s requests for

additional unreasonable contest attorney fees. As discussed above, under Section

440 of the Workers’ Compensation Act, unreasonab le contest attorney fees may be13

awarded only to a claimant that prevails in the litigation, and Employer, not

Claimant, is the prevailing party. 5

____________________________________ JAMES GARDNER COLINS, Senior Judge

Judge McCulloug h and Judge Wojcik did not participate in the decision in this case.

5 Indeed, e ven if Employer did not prevail, the request for unreasonable contest attorney fees here

would be without merit

. Employer ’ s petition for refund involved a genuine

, good faith dispute

over an unsettled question of law, as the WCJ and Board properly concluded , not an unreasonable

contest . Moreover, Empl oyer’s petition sought only a refund of attorney fees from Counsel, not

any recovery from Claimant. Unreasonable contest attorney fees cannot be awarded under Section

440 for efforts by counsel directed solely at secur ing and defend ing their fee awards. Weidner v.

Workmen’s Compensation Appeal Board , 442 A.2d 242 , 245 (Pa. 1982) ; Brose v. Workers’

Compensation Appeal Board (Keystone Optical Laboratory)

, 710 A.2d 637, 6 40 (Pa. Cmwlth.

1998).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny

, :

:

Petitioner :

:

v. : No. 8 2 C.D. 201 6

: Workers’ Compensation Appeal : Board ( Parker ), :

: Respondent :

Harold Parker

, :

:

Petitioner :

:

v. : No. 112 C.D. 2016

: Workers’ Compensation Appeal : Board ( County of Allegheny ), :

: Respondent :

O R D E R

AND NOW, this 20 th day of December , 201 6 , the order of th e

Workers’ Compensation Appeal Board (Board) in the above matter is REVERSED

insofar as it denied the petition of County of Allegheny (Employer) for an order

directing David M. Landay, Esquire (Counsel) to refund unreasonable contest

attorney fees that Emp loyer was erroneously ordered to pay to Counsel

. This case

is REMANDED to the Board to remand to a Workers’ Compensation Judge (WCJ)

with instructions to grant Employer’s petition an d order Counsel to refund to

Employer the $14,750 in unreasonable contest attorney fees that Employer paid toCounsel

. T he Board’s order is AFFIRMED insofar as it affirmed the WCJ’s deni al

of Counsel’s request for additional unreasonable contest attorney fees

.

Jurisdiction relinquished.

_____________________________ _______ JAMES GARDNER COLINS, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny

, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Parker)

, : No. 82 C.D. 201 6

Respondent : Argued : November 14

, 2016

Harold Parker, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (County of Allegheny), : No. 112 C.D. 2016

Respondent : Argued: November 14, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE JOSEPH M. COSGROVE

, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

DISSENTING OPINION

BY JUDGE COSGROVE FILED: December 20

, 2016

While the Majority is correct in finding that Employer has not waived

its right to seek a refund of the unreasonable contest attorney fees, and further, that

Claimant is not entitled to additional fees regarding his opposition to Employer's

efforts in seeking that refund, I cannot agree that Claimant’s counse l is required to

refund the unreasonable contest attorney fees which were previously awarded in

this case. I must therefore respectfully dissent.JMC

- 2 The Majority's reasoning centers on this Court's decision in Barrett v.

Workers' Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth.

2010). Unfortunately, Barrett does not provide sufficient support for a principle as

consequential as the Majority posits. In Barrett

, the employer sought

reimbursement of deposition costs from claimant's counse l which it had been

ordered to pay in a matter where it, not the claimant, ultimately prevailed. Citing

Lucey v. Workmen's Compensation Appeal Board (Vy

- Cal Plastics PMA Group),

732 A.2d 1201 ( Pa. 1999), the Court noted that the order to reimburse the

dep osition cost, "while unusual, is not without precedent," and held that "the

[Workers ’ Compensation Judge (WCJ)] can order [c]laimant's counsel to refund"

the costs of the deposition. Barrett

, 987 A.2d at 1290.

The problem with this analysis is that reim bursement of attorney fees

was not at issue in Lucey. In that case, the Supreme Court "granted review limited

to [an] issue

... [relating to] subrogation credit arising from the negotiated

settlement between claimant and his medical services provider." L ucey, 732 A.2d

at 1203. In its recitation of facts, the Supreme Court mentioned an earlier order by

a WCJ directing counsel to repay attorney fees, but this fact was not at issue in the

case before the Court, nor did the Court offer any hint as to whether it approved or

disapproved of such action. Nonetheless, the Barrett court invokes this mere

factual reference, and while recognizing that ordering refund of attorney fees is

"unusual," cites Lucey as "precedent" for its decision allowing the refund of

de position costs.

The Majority takes this thin thread and stretches it beyond what

Barrett even arguably suggests. If, indeed, reimbursement of costs is the norm

established by Barrett

, that case, built on the non

- decision in Lucey

, offers noJMC

- 3

support for reimbursement of attorney fees. This fact, however, does not dissuade

the Majority. Instead, in a sort of reverse gymnastics, it takes Sec tion 440, which

allows for payment of both costs and attorney fees in successful unreasonable

contest matters, and concludes that the opposite must also be true, i.e., that

reimbursement of attorney fees may likewise be ordered in the unsuccessful

unreasonable contest case. This logic is creative, but finds no harbor in the statute

itself.

Even more troubling is the Majority's conflation of two discrete

concepts: costs and attorney fees. The Majority suggests that since Section 440

discusses attorney fees in the context of costs, then these fees must be nothing

more than a species of costs, not unlike the expense in curred in the taking of a

deposition as was addressed in Barrett

. But attorney fees are not merely costs.

They are awarded in the successful unreasonable contest case under Section 440

for important policy reasons, "serv[ing] both to discourage [unreason able] contests

and to encourage competent legal representation " in unreasonable contest

claims. Eugenie v. W orkmen’s Compensation A ppeal Board (Sheltered

Employment Service )

, 592 A.2d 358, 361 ( Pa. Cmwlth. 1991) (emphasis added).

The present ruling flouts this policy and can only work to dis courage rather than

en courage counsel's participation in the workers ’ compensation process, and

diminish the importance of skilled advocacy to that process.

If, indeed, th e Majority aims to "prevent[] claimant's counsel's unjust

enrichment," it should base its decision on something stronger than the argument itJMC

- 4

makes. 1 Neither Lucey nor Barrett provide the necessary precedent for the

conclusion reached by the Majority, whi ch likewise lacks statutory support. If the

problem identified by the Majority exists, it is not for this Court to fashion a

remedy, as it has, out of whole cloth, but instead is best and more properly left to

the legislature. Since I cannot support this aspect of the Majority's holding, I must

respectfully dissent.

___________________________ JOSEPH M. COSGROVE, Judge

1 There is nothing in the record to indicate that counsel did not provide competent,

professional service. Nor, given the fluctuation between the grant and reversal of the underlying

unreasonable contest claim, is the re any suggestion that this claim was not at l east of arguable

merit and not at all frivolous. What cannot be ignored is that the payment of attorney fees in the

first place occurred as a result of this Court's refusal to grant a supersedeas in February of 2012

as requested by Employer. 2014 WCJ Dec ision at 5 F.F. Paragraph 7. We must assume that the

Court's decision denying the supersedeas was thoughtful and based on the merits presented, thus

making the present decision al l the more difficult to grasp.