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Workers’ compensation claimants are entitled to recover paralegal fees when they have been awarded regular attorney fees, Pennsylvania’s Supreme Court has ruled in a case of first impression. In its 6-1 decision in Vitac Corp. v. Workers’ Compensation Appeal Board, the majority concluded that the “attorney’s fees” provision in the Workers’ Compensation Act should include fees for services rendered by paraprofessionals such as paralegals, law clerks, recent law school graduates and others. “It seems evident that, if paraprofessional fees were excluded from the fee shifting provision [of the act],” Justice Thomas G. Saylor wrote, “a claimant might have to bear a substantial portion of such litigation costs, thus eroding the benefits that the General Assembly has elected to confer upon employees in exchange for the elimination of the latter’s common law negligence remedies against the employer.” Saylor was joined by Chief Justice Ralph J. Cappy and Justices Russell M. Nigro, Sandra Schultz Newman, J. Michael Eakin and Max Baer. Justice Ronald D. Castille filed a dissenting opinion. In June 1998, Sheila Rozanc, a Vitac employee, began receiving workers’ comp benefits after claiming she suffered from carpal tunnel syndrome, according to the opinion. Vitac, according to its Web site, is a Canonsburg, Pa.-based captioning services provider. Rozanc had been employed at Vitac as a court reporter, said her attorney, James Burn of Abes Baumann in Pittsburgh, Pa.. Several months after Rozanc began receiving benefits, according to the opinion, Vitac petitioned to have her benefits suspended and later sought modification of her compensation, saying that it had offered her a different position with the company. Rozanc requested attorney fees under Section 440(a) of the WCA. In August 1999, according to the opinion, a workers’ comp judge ruled that Vitac had acted in bad faith in seeking suspension of Rozanc’s benefits, and she was awarded reimbursement for all of her attorney fees, but not for paralegal and law clerk fees. But the workers’ comp appeal board reversed the WCJ’s holding as to the paralegal and law clerk fees. On remand, the WCJ awarded Rozanc a sum for attorney fees that included $92 for paraprofessional fees, according to the opinion. On appeal, a Commonwealth Court panel, noting that Section 440(a) does not specifically mention paraprofessional fees, struck the $92 from the overall award. According to the majority’s opinion, Section 440(a) provides for “a reasonable sum for costs incurred for attorney’s fees” to be awarded to employees in whose favor a workers’ comp case has been decided. In its 1989 opinion in Missouri v. Jenkins, Saylor wrote, the U.S. Supreme Court ruled that attorney fees should also include compensation for secretaries, messengers, janitors and others. Even the dissent in Jenkins acknowledged that such services fell under the federal fee shifting statute, according to the opinion. “As a threshold matter,” Saylor wrote, “[the] employer’s effort to exclude paraprofessional fees entirely from the purview of Section 440(a) draws little support from the Jenkins dissent.” The majority noted that the decision of the WCAB, part of the agency charged with administering the WCA, deserves consideration. “[Their] construction is also consistent with the ‘clear intent’ of the provision at issue to protect the claimant from the costs of defending against bad-faith filings challenging legitimate compensation for injuries sustained,” Saylor wrote. Because Section 440 allows attorneys to pass on paraprofessional costs via added overhead in their own hourly rates, the justices concluded that the General Assembly could not have intended that certain claimants would not be entitled to paraprofessional reimbursement merely because their attorneys included those costs as separate line items. “Accordingly,” Saylor wrote, “we hold that the term ‘attorney’s fee’ in Section 440(a) of the [WCA] includes reasonable fees for legal services rendered by paraprofessionals such as paralegals, law clerks and recent law graduates.” In his dissent, Castille wrote that the majority’s “expansive interpretation” was not supported by the language of Section 440(a). “The existence and role of paraprofessionals is not mysterious or arcane,”Castille wrote. “When drafting this legislation, the General Assembly no doubt was well aware that lawyers and firms commonly employ paralegals and law clerks to perform certain tasks, and it could have included the costs of those services in its list of recoverable costs. It did not.” Section 440(a) was last rewritten in 1993. Burn, who was assisted by Sandra Kokal, called the decision a well-deserved acknowledgment of the support lawyers receive from paralegals and law clerks. “[This opinion] provides an argument in other areas of the law in which practitioners may be faced with a similar situation,” Burn said, “because the legal issues presented here were not fact-sensitive to workers’ comp situations.” The $92 awarded by the WCJ had been meant for paralegals and law clerks in his office, Burn said. “We’ve been able to get by so far without it,” he said. “But when the money does come in, I’m going to take them out to lunch.” The WCAB was represented by Department of Labor & Industry deputy chief counsel Richard Lengler and assistant counsel Amber Kenger. Department spokesman Troy Thompson declined to comment on the decision, as the WCAB was only a nominal party in the case. Vitac’s lawyer, Joseph Fricker of Fricker & Associates in Pittsburgh, Pa, said he did not have time to discuss the decision with his client and declined to comment.

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