Monday, June 09, 2003

Claimant Can Not Extinguish Former Counsel's 20% Fee When Compromising and Releasing Future Benefits

In Gingerich v. WCAB (US Filter) a continuing 20% attorney's fee was awarded on the grant of a fatal claim. When the Widow entered into a compromise and release waiving future benefits in consideration of wavier of the subrogation lien, The WCJ approved the Agreement and terminated the attorney fee and the Board affirmed. The Commonwealth Court held that even though the Claimant exercised her Section 449(a) right to compromise any and all liability under the Act, she did not have the right to extinguish the 20% counsel fee.

The result in this case might be explained by the answer to the question: "If the Attorney's fee is owed, who pays?" The Claimant is contractually bound to pay the fee. However, in the Compromise and Release Agreement in this case the Defendant agreed that it would pay the fee if it was found that the fee is owed.

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