Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Ball v. Universal Cyclops Steel, No. A-68025.
Stephen D. Marriner, with him McCreight, Marriner & McCreight, for appellant.
L. V. Jackson, with him Harold V. Fergus, Jr., Fergus, Martin and Fergus, and James N. Diefenderfer, for appellee.
Judges Kramer, Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.
[ 19 Pa. Commw. Page 158]
In this workmen's compensation case, Mabel Ball (claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's award of attorney's fees and failed to award penalties to the claimant.
On September 29, 1972, claimant's husband, John Ball, an employee of Universal Cyclops Steel Corporation (employer), suffered fatal injuries when he fell to the floor on the employer's premises while in the course of
[ 19 Pa. Commw. Page 159]
his employment. Claimant filed a fatal claim petition under The Pennsylvania Workmen's Compensation Act (Act)*fn1 and was subsequently awarded compensation after a hearing before a referee. The referee also awarded claimant attorney's fees on the basis of his conclusion of law that the employer had failed to establish a reasonable basis for contesting the claim under Section 440 of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996 (Supp. 1974-75). The employer appealed to the Board, which affirmed the referee's award of compensation but reversed the award of attorney's fees, concluding that there was a reasonable basis for the employer's contest of the claim. Claimant then appealed to us.
Section 440 reads in pertinent part as follows:
"In any contested case where the insurer has contested liability in whole or in part, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established: And provided further That if the insurer has paid or tendered payment of compensation and the controversy relates to the amount of compensation due, costs for attorney's fee shall be based only on the difference between the final award of compensation and the compensation paid or tendered by the insurer."
In Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, ...