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decided: March 5, 1975.


Appeal from the Order of the Workmen's Compensation Appeal Board in case of Roy Nicewonger v. Crangi Distributing Company and Home Insurance Company No. A-67397.


Eugene F. Scanlon, Jr., with him Noble R. Zuschlag, and Dickie, McCamey & Chilcote, for appellant.

Rex Downie, Jr., with him James N. Diefenderfer, for appellees.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr. did not participate. Resubmitted on briefs by stipulation of the parties with the full court, including Judge Wilkinson, Jr., participating. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer. Judges Crumlish, Jr. and Blatt join in this dissent.

Author: Rogers

[ 17 Pa. Commw. Page 532]

This case requires us to interpret new statutory law empowering the Pennsylvania workmen's compensation authorities to impose penalties upon, and to order the payment of claimants' attorney's fees by, employers and their insurance carriers.

The claimant, Roy Nicewonger, was employed as a truck driver-delivery man by Crangi Distributing Company, a small beer distributing firm. The claimant was dissatisfied with his employment, chiefly on account of what he considered to be the poor work habits of other employes and had threatened to quit on a number of occasions. On Friday, October 6, 1972, he did quit, telling his employer, according to the claimant's version, that he didn't feel well, and, according to the employer's version, that he was "sick and tired of putting up with the other employes and that he was fed up." On Wednesday, October 11, 1972, the claimant called the employer by telephone and stated that he had been injured while unloading his truck on Thursday, October 5, 1972. Nicewonger filed a workmen's compensation claim in January 1973, alleging that he had injured his back on October 6, 1972. The employer filed an answer denying an injury at work.

After hearings, a referee awarded the claimant compensation for total disability, and, in addition, imposed upon the employer a penalty in the amount of ten percent (10%) of the deferred compensation and interest. This was the first reference to the subject of penalty in the proceedings. The referee also directed the employer to pay the claimant's attorney a fee in the amount of twenty percent (20%) "of the total payment awarded the claimant." The Workmen's Compensation Appeal Board affirmed the referee and the employer appealed the matter to this court.

The employer first contends that the referee's finding that the claimant suffered a compensable injury in the

[ 17 Pa. Commw. Page 533]

    course of his employment is not supported by the evidence.

Upon reviewing the record, we are satisfied that the referee might have found against the claimant. However, he resolved the serious questions as to the credibility of the claimant's assertion of an injury in favor of the claimant. The scope of our review on the facts is limited to the determination of whether there is substantial evidence to support the referee's finding, leaving issues of credibility and weight to the fact finder. New Standard Corp. v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 494, 309 A.2d 60 (1973). The record contains sufficient competent evidence in support of the referee's findings on this issue and we may not disturb it.

The employer also contests the imposition of penalty. We reproduce the pertinent portions of Section 435 of the Act. Act of June 2, 1915, P.L. 736, Art. IV. § 435 added February 8, 1972, P.L. , No. 12, § 3, 77 P.S. § 991. "(a) The department shall establish and promulgate rules and regulations consistent with this act, which are reasonably calculated to: (i) expedite the reporting and processing of injury cases, (ii) insure full payment of compensation when due, (iii) expedite the hearing and determination of claims for compensation and petitions filed with the department under this act, (iv) provide the disabled employe or his dependents with timely notice and information of his or their rights under this act, (v) explain and enforce the provisions of this act. (b) If it appears that there has not been compliance with this act or rules and regulations promulgated thereunder the department may, on its own motion give notice to any persons involved in such apparent noncompliance and schedule a ...

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