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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA v. JAMES A. LEUSCHEN (08/06/75)

decided: August 6, 1975.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA, GENERAL ELECTRIC COMPANY AND ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY, INSURANCE CARRIER,
v.
JAMES A. LEUSCHEN, APPELLANT



Appeal from the order of the Workmen's Compensation Appeal Board in case of James A. Leuschen v. General Electric Company, No. A-68235.

COUNSEL

Richard H. Scobell, for appellant.

Howard N. Plate, with him Plate, Doyle and Hutzelman, and James N. Diefenderfer, for appellees.

David A. Ody, Assistant Attorney General, for amicus curiae, Commonwealth.

Judges Kramer, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 21 Pa. Commw. Page 40]

On October 29, 1973, James A Leuschen (Leuschen) filed a claim petition with the Bureau of Workmen's Compensation, alleging that he became disabled on August 27, 1973, while in the employ of the General Electric Company (employer). On January 3, 1974, a hearing was held on Leuschen's petition before a referee who subsequently awarded benefits for total disability in the amount of $100 per week, beginning August 28, 1973 and continuing into the future, according to the provisions of The Pennsylvania Workmen's Compensation Act (Act).*fn1 The referee also awarded Leuschen the sum of $1936 for medical expenses and directed the employer to pay Leuschen's attorney legal fees in an amount equal to 20 percent of the sum of Leuschen's medical bills and the

[ 21 Pa. Commw. Page 41]

    weekly benefits awarded from August 28, 1973 to the date of the referee's order.*fn2

The employer then appealed the referee's award to the Workmen's Compensation Appeal Board (Board). Before the Board heard the appeal, the employer filed a petition requesting that its appeal act as a supersedeas. This petition was granted by the Board. Thereafter, the Board, on October 17, 1974, filed an opinion and amended the award of benefits by substituting a new order for that of the referee. The Board's order decreased the amount awarded Leuschen's attorney to $500, found that Leuschen returned to work on January 21, 1974, and terminated benefits on that date and subrogated the Metropolitan Life Insurance Company to receive the weekly benefits owing to Leuschen up to an amount of $105.76 per week. Leuschen appealed the Board's order to this Court.*fn3

Leuschen first argues that the Board erred in decreasing the amount of attorney's fees. We agree.

Section 440 of the Act*fn4 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 ...


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