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CAIRNBROOK COAL COMPANY AND OLD REPUBLIC COMPANIES v. COMMONWEALTH PENNSYLVANIA (06/21/77)

decided: June 21, 1977.

CAIRNBROOK COAL COMPANY AND OLD REPUBLIC COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ANDREW G. VRABEL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Andrew G. Vrabel v. Cairnbrook Coal Company and Commonwealth of Pennsylvania, No. A-71525.

COUNSEL

Michael D. McDowell, with him Hirsch, Weise & Tillman, for petitioner.

Timothy P. Creany, with him James N. Diefenderfer, and Mary Ellen Krober, Assistant Attorney General, for respondents.

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

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 30 Pa. Commw. Page 622]

This is an appeal by Cairnbrook Coal Company (employer) from an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's order directing the employer to pay an appearance fee to a claimant's physician who testified at a hearing before the referee.

Andrew Vrabel (claimant) filed a claim petition for compensation for coal worker's pneumoconiosis with the Bureau of Occupational Injury and Disease Compensation. At the referee's first hearing, the claimant presented his own testimony and the report of his examining physician. At the employer's request, the referee held another hearing at which the claimant's physician testified and at which the claimant requested that in the event of an award of benefits the costs of his physician's appearance be taxed on the employer as part of the costs of the case pursuant to Section 440 of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. § 996. The referee awarded benefits to the claimant and assessed the appearance fee ($150) of the claimant's physician against the employer, directing that the fee be reimbursed to the claimant's counsel. The employer appealed the award of the medical testimony costs, and the Board affirmed the referee. This appeal followed.

In a workmen's compensation case where the party with the burden of proof prevailed below and the Board took no additional evidence, review by this Court is limited to a determination of whether or not constitutional rights were violated, an error of law was committed or necessary findings of fact were unsupported

[ 30 Pa. Commw. Page 623]

    by substantial evidence, leaving to the referee questions of evidentiary weight. Shannon v. Southwark Metal Mfg. Co., 27 Pa. Commonwealth Ct. 461, 366 A.2d 960 (1976). The employer argues here that (1) Section 440 of the Act, 77 P.S. § 996, is unconstitutional in that it violates both the equal protection clause of the United States Constitution and Article I, Section 26 of the Pennsylvania Constitution and (2) that the referee erred in directing that the appearance fee be paid to the claimant's counsel rather than the claimant himself.

Section 440 of the Act, 77 P.S. § 996, provides in pertinent part:

In any contested case where the insurer has contested liability in whole or in part, the employe . . . 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 ...


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