September 24, 2021
A recent Law 360 story by Matthew Santoni, “Court Can’t Bar Injured Workers’ Atty Fees, Pa. Justices Told,” reports that a worker told the Pennsylvania high court that he should be allowed to seek attorney's fees from PennDOT after he won a workers' compensation case, arguing the lower court improperly shut the door on injured workers getting their employers to pay legal bills. Arguing before the Supreme Court of Pennsylvania, an attorney representing injured PennDOT worker Vincent Lorino said Commonwealth Court Judge P. Kevin Brobson's opinion misstated that workers' compensation judges "shall" deny fees when an employer's challenge of a worker's claim for benefits is reasonable, when the law says "may."
"I was surprised at how blunt and direct Judge Brobson's opinion was, when it said 'despite the General Assembly's use of the word may, this court has always interpreted Section 440' this way," said George Badey of Badey Sloan & DiGenova. "You can't do that, respectfully. The courts can't do that." Badey asked the justices to rule that Lorino could still ask for PennDOT to pay his legal fees and that the lower court had run afoul of the Statutory Construction Act in substituting its own wording for the legislature's.
According to court records, Lorino sprained his lower back and hip on the job in 2016 and started getting regular steroid injections that allowed him to return to work. PennDOT, which was covering his medical costs but providing no missed-work benefits, sought to terminate the medical payments in 2017 and offered a doctor's opinion that Lorino's work-related injury had fully healed. A workers' compensation judge reversed PennDOT's denial in 2018 but ruled that Lorino had to pay his own legal bills because PennDOT's challenge to his claim had been reasonable. On appeal to the Commonwealth Court, Judge Brobson said in August 2020 that the workers' compensation judge was right and that the courts had always interpreted that section of the law as denying fees unless the challenge was unreasonable.
In the argument to the high court, Badey said courts had to interpret the law as it was written and could not change the wording. He said siding with his client would affect only a narrow group of workers like him who were still working and not getting wage benefits that could be split with an attorney as part of a contingency fee agreement. Chief Justice Max Baer pressed Badey on whether reopening the possibility of fees would just shift the debate to whether an employer's challenge was reasonable, which would be up to the workers' compensation judge's discretion.