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It is supposed to be settled law that when a workers’ compensation claimant prevails in a litigated case, the workers’ compensation judge must assess attorney fees against the employer unless the employer satisfies its burden of establishing a reasonable basis for the contest. The exception to this rule is for the WCJ to decline to award unreasonable contest counsel fees if the employer is able to prove that a reasonable basis for contesting the petition existed. I was shocked to learn this was the law more than 10 years ago when I was a law clerk, auditing my first workers’ compensation CLE course. In decisions stemming from the plethora of cases that I had briefed, I was unaware of any unreasonable contest awards, despite regular victories on the merits. Ten years later, things are beginning to change for the better. I note with interest the recent Commonwealth Court case of Northwest Medical Center v. W.C.A.B. In this case, the court affirmed an award of unreasonable contest counsel fees and reiterated the rule of law it applied in the 2004 case of Bells Repair Service v. W.C.A.B. : That absent some evidence to contradict or challenge a claimant’s allegations that he suffered a work-related injury, a bald credibility challenge to an unwitnessed work-related injury is insufficient to demonstrate a reasonable contest. This point is significant, since almost every workers’ compensation dispute begins as a “bald credibility challenge,” often stemming from unrelated employment issues. In most cases, the lack of actual evidence tending to impugn the claimant’s version of the work accident persists, even long after the 21-day period during which an employer must accept or deny a claim. Of course, this never stopped an employer from denying a claim within 21 days based solely on the aforementioned “bald credibility issue.” This is because the employer can usually rely on the claimant’s practitioner failure to vehemently pursue unreasonable contest counsel fees and the WCJs’ frequent reluctance to award them. What makes Northwest Medical Center even more significant, aside from the counsel fee award against the employer, is the fact that the claimant did not even endeavor to present medical evidence in support of his claim. One would think that this circumstance alone would provide a sufficient defense. Although the law allows that a claim can be granted where the “causal connection is obvious,” I would not want to leave the fate of my client in the subjective realm of “obvious” judicial interpretations. Suffice it to say, relying on the obvious nature of the causal connection should be done only in the rarest of cases, if at all. Nonetheless, even given this seemingly built-in defense to the claim, the Commonwealth Court not only agreed with the WCJ that the claim was properly granted but it also affirmed the portion of the WCJ’s order that awarded unreasonable contest counsel fees. Northwest Medical Center is just the latest in a series of Commonwealth Court cases that seek to give teeth to the legal principle that a claimant who prevails in a litigated case is entitled to the payment of attorney fees by the employer as a rule. While in practice, awarding unreasonable contest counsel fees remains the exception, it is incumbent upon the claimant’s attorney to pursue the issue vigorously if employers are ever to be held accountable for unreasonably denying claims based on “bald credibility issues.” For whatever reason, the Commonwealth Court has been taking quite seriously an employer’s obligation to have a valid basis for denying a petition. Unfortunately, that degree of scrutiny has not yet made it to the employer/insurer war rooms across the state. The practice remains to deny a claim until the claimant proves through competent medical evidence (via panel physicians opinion, no less) that he was injured on the job and the injury causes him to be disabled through the 90-day temporary compensation/panel care period. This is not what the legislature intended. The Commonwealth Court has made that clear. It is now up to the claimant’s bar to put the intent of the legislature into practice by refusing to yield on the unreasonable contest counsel fee issue. Christian Petrucci is past co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He concentrates his practice in workers’ compensation litigation and Social Security Disability. He can be reached at 215-985-0976 or via e-mail at [email protected]

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