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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND W.R. WALLIS v. MYRON DENNY (07/02/76)

decided: July 2, 1976.

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND W.R. WALLIS, INC.
v.
MYRON DENNY, JR., APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Myron Denny, Jr. v. W.R. Wallis, Inc., No. A-69965.

COUNSEL

William F. Bradican, for appellant.

Joseph A. Murphy, with him John R. Lenahan, and Lenahan, Dempsey & Murphy, and James N. Diefenderfer, for appellees.

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

Author: Kramer

[ 25 Pa. Commw. Page 396]

This is an appeal by Myron Denny, Jr.*fn1 from an adjudication of the Workmen's Compensation Appeal Board affirming the determination of the referee that Denny's employer, W.R. Wallis, Inc., was not liable for the payment of the attorney's fees and costs incurred by Denny as a result of the unsuccessful petition to terminate filed by Wallis. We will reverse.

On April 24, 1970, Denny experienced a compensable injury as a result of which he entered into the compensation agreement with Wallis dated May 7, 1970, providing for workmen's compensation benefits. Wallis' physician conducted physical examinations of Denny on March 21, 1972 and on January 30, 1973. On March 21, 1973, Wallis filed a petition to modify the agreement to reduce the total disability to twenty-five percent disability. After hearing, a referee on October 23, 1973, determined that Denny remained totally disabled and dismissed the petition to modify. Within six months thereafter Denny was again examined on April 1, 1974, by Wallis' physician, as a result of which Wallis filed a petition to terminate on April 26, 1974. Hearings were held, and on February 10, 1975, the referee dismissed the

[ 25 Pa. Commw. Page 397]

    petition to terminate. As part of his adjudication, the referee made a conclusion which he denoted as a finding (No. 6), the pertinent part of which reads:

"We find as a fact that the defendant is not liable for payment of this [Denny's physician's] examination. We also find as a fact that the defendant is not liable for the payment of claimant's attorney's fee."

On March 19, 1975, Denny appealed to the Board from that portion of the referee's decision denying costs and attorney's fees. In affirming the referee, the Board concluded that:

"imposition of attorney's fees under the amendments to the Pennsylvania Workmen's Compensation Act, effective May 1, 1972, are not procedural, but substantive, and increase obligations for which the employer and carrier would be liable, and, therefore, do not apply to accidents predating the effective date of said amendments."

In his appeal to this Court, Denny argues that the Board committed an error of law. We agree. In 1972, the General Assembly made substantial changes to the Workmen's Compensation Act, Act of June 2, 1915, as amended, P.L. 736, 77 P.S. ยง 1 et seq. In the introductory ...


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