So, this is my second appellate win!  I wrote about this back in October.  The controversy centered around a mistake by the E/C’s computer system when it accidentally cut Claimant off from voluntary PTD payments.  Claimant filed a Petition for Benefits for reinstatement.  By the time the E/C corrected the error and paid past PTD with penalties and interest, more than 30 days passed and we owed a fee.  You can read the decision here.

The issue on appeal was: how much were the benefits that Claimant’s attorney secured?  The answer after the jump. . .

In Interbrands Corp. v. Blanco, Claimant attorney argued the amount of the benefits he secured was all of the future PTD benefits over the course of Claimant’s life, since due to his efforts the E/C reinstated payments.  However, this is the incorrect standard towards determining fees.

The first query is: did the attorney’s efforts secure a fee?  If they did, the next query is: how much were  the value of those benefits?  As mentioned in my previous post, the Slovak decision specifically ties the E/C’s intent towards the value of the benefits secured.  If the E/C did not intend to permanently suspend Claimant’s benefits (i.e. declare he is not PTD) then the benefits secured is the value of future PTD payments.

In this case, the suspension of benefits was purely accidental, therefore, the amount of benefits secured is limited to just the past due PTD benefits.  In this case, the past PTD benefits were around $9,000.  Considering, a stat fee would be about $2,000 for just filing a PFB, I am sure the Claimant attorney won’t go hungry tonight.

Now, the Court did note that the opposite would true.   If a Judge found that and E/C intended to permanently suspend benefits she may consider the value of future benefits in determining attorney fees to award.  Judge Wolf, in his dissent, argued that there should be objective measures towards that finding.

While I respectfully disagree with Judge Wolf that such objective benchmarks were found in this case, I do agree that such objective measures should be applied to similar cases.  At oral arguments I offered examples: a Notice of Denial (or DWC-12), the retaining of a vocational rehab expert, the retaining of an IME, the request of attendance at an FCE.  These are all tell tale signs that an E/C is preparing to permanently suspend benefits. 

For adjusters, be sure you plan your defense if this is your intention.  Because, if you put up these “objective measures” and decide to reverse course, a Judge is not going to be sympathetic to your pleas that the suspension was temporary.

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