When a claimant prevails in a termination petition, her litigation costs are reimbursable, even where the the testimony of her medical expert is found to be not credible by the court.

The claimant sustained a work injury on October 4, 2018, in the nature of a left hand strain. She returned to work and began receiving partial disability benefits pursuant to a Notice of Suspension or Modification. Subsequently, the claimant filed a review petition to expand the injury and reinstatement and penalty petitions. The employer then filed a termination petition, alleging a full recovery as of March 10, 2020.

In denying all of the petitions, the Workers’ Compensation Judge rejected the testimony given by the claimant and her medical expert, as well as the employer’s medical expert. Because the claimant prevailed in part, the judge awarded the claimant reimbursement for litigation costs, except for the fee for her medical expert. According to the judge, the fee was denied since he found the claimant’s expert to be not credible. The claimant appealed to the Workers’ Compensation Appeal Board, which affirmed the judge’s decision, including the denial of the litigation costs.

The Commonwealth Court reversed the decisions of the judge and the Board. In doing so, it cited Section 440(a) of the Act, which authorizes an award to a claimant for litigation costs where the claimant prevails in part or in whole. The court said they were aware of no qualification, either in statute or case law, that the costs incurred must contribute to the success of the matter at issue. The court said that adding the element of “success” to the matter of issue would impose an additional element that is not set forth in the Act and undermined the remedial purpose of the Act. The testimony given by the claimant’s medical expert was related to the matter at issue, the termination petition, in which the claimant prevailed.

_{What’s Hot in Workers’ Comp, Vol. 26, No. 11, November 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}