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WORKMEN'S COMPENSATION APPEAL BOARD COMMONWEALTH PENNSYLVANIA AND DAVIDSON TRANSFER & STORAGE CO. v. SANTO LEVY (08/27/76)

August 27, 1976

WORKMEN'S COMPENSATION APPEAL BOARD OF THE COMMONWEALTH OF PENNSYLVANIA AND DAVIDSON TRANSFER & STORAGE CO.
v.
SANTO LEVY, APPELLANT



No. 1129 C.D. 1975

Before Honorable Harry A. Kramer, Judge, Honorable Roy Wilkinson, Jr., Judge, Honorable Genevieve Blatt, Judge

Author: Kramer

JUDGE KRAMER

This is an appeal by Santo Levy from an order of the Workmen's Compensation Appeal Board, dated July 23, 1975, which affirmed a referee's adjudication. Levy raises five issues, which we will consider separately below. We will remand.

On October 28, 1968, Levy suffered a severe fracture of his right leg while unloading cargo. On November 8, 1968, he entered into a compensation agreement with his employer which called for maximum total disability benefits of $60.00 per week based on an average weekly wage of $179.42. Approximately twenty months later, on June 29, 1970, Levy had recovered sufficiently to permit him to perform some types of work and, accordingly, he executed a supplemental agreement calling for maximum partial disability benefits of $45 per week.

On July 6, 1971, Levy found employment as a truck driver at wages in excess of his original average weekly wage. The parties then stipulated that the benefits should be suspended in light of this fact. This stipulation was approved and reflected in a referee's order dated June 19, 1972.

On December 14, 1972, Levy was admitted to a hospital for treatment of a urological ailment not related to his leg injury. He remained hospitalized until January 15, 1973, and, because of this period of inactivity, Levy suffered a recurrence of total disability from his leg condition. The parties disagree on the question of precisely how long this second period of total disability lasted, and the referee found that the aggravation "cleared up in no more than nine weeks". After an additional six weeks of total disability not related to the leg injury,*fn1 Levy resumed his job as a truck driver on May 1, 1973, again at wages in excess of his original average weekly wage.

On July 14, 1973, Levy was laid off. He did not resume full employment until July 1, 1974, although during the one year of unemployment he worked part-time for approximately six weeks. During his unemployment Levy was entitled to, and received, unemployment compensation benefits. On July 1, 1974, Levy obtained a clerical position suitable to a man with his type of partial disability, at a wage of $161 per week. He continues in this job, earning wages which entitle him to partial disability benefits of $12 per week.

Levy began the instant case by filing a Petition for Modification seeking total disability benefits for the periods from January 15, 1973 to April 30, 1973 and from July 14, 1973 to July 1, 1974. He also asked for partial disability benefits for the period from May 1, 1973 to July 7, 1973, and from July 1, 1974 into the future. Although he received a referee's award, Levy was dissatisified in five particulars. After the Board affirmed the referee in all respects, Levy appealed to this Court.*fn2

I. ATTORNEY'S FEES

Levy filed a Bill of Costs which requested, inter alia, attorney's fees. This request was denied by the Board under the theory that the 1972 amendment to Section 440 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 996, related to a matter of substance rather than procedure and is therefore not applicable to cases involving injuries occurring prior to the effective date of the amendment. We have recently dealt with an identical question in Workmen's Compensation Appeal Board v. Denny,... Pa. Commonwealth Ct. ... , 360 A.2d 306 (1976), where we held that the new provisions of Section 440 are to be treated as matters of procedure. The reasoning in Denny is applicable to the instant case, as is the necessity we found in Denny to remand the matter to determine (1) whether a reasonable basis for the employer's contest existed and (2) what reasonable attorney's fees would be. For the purpose of the remand, we also note the potential relevance of those portions of Section 440 which refer to costs for witnesses and medical examinations.

II. MEDICAL COSTS

Levy also was denied payment of the following medical expenses:

1. Services of Dr. John J. Joyce for the period

March 3, 1970 - February 11, 1974 $225.00

2. Germantown Hospital (X-rays) ...


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