Appeals from the Order of the Workmen's Compensation Appeal Board, in case of John J. Ratchko v. J. Bass and Company, No. A-71471.
Joseph A. McKenna, with him James J. Riley, and Williamson, Friedberg & Jones, for John J. Ratchko.
James P. Harris, Jr., with him Harris, Johnston & Maguire, for J. Bass & Co.
James N. Diefenderfer, for Board.
Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Judge Kramer did not participate in the decision. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case. See Pa. R.a.p. 310(d).
[ 31 Pa. Commw. Page 587]
This is an appeal from a decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's award of attorney's fees to claimant, John J. Ratchko.
Claimant suffered an accidental injury in the course of his employment with J. Bass & Company (Employer) resulting in the amputation of the distal two phalanges of each of the four fingers of his left hand, a 50 percent limitation of motion to the distal joint of the left thumb, and loss of sensation on the palmar surface of the thumb.
By agreement, compensation benefits were paid by Employer's carrier specifically for the loss of four fingers of the left hand.
Upon recovery, Claimant returned to work at the same job he had when the accident occurred, and at the same wage rate. Because of his injury, Claimant was unable to adequately perform his job and was given duties which did not require the use of his left hand. Approximately two months after returning to work, Claimant petitioned the Bureau of Occupational Injury and Disease Compensation (Bureau) to review the provisions of his compensation agreement with Employer, alleging that it was materially defective in that it provided compensation only for loss of four fingers and not for the loss of use of the hand. The Bureau's referee found that Claimant lost the use of his hand for all practical intents and purposes and that he was entitled to payment of workmen's compensation benefits for such a loss. The referee also awarded attorney's fees to Claimant. Employer appealed to the Board. The Board affirmed the referee's finding as to loss of use of the hand and reversed the award of attorney's fees without taking additional evidence. Claimant then appealed to us.
[ 31 Pa. Commw. Page 588]
Section 440 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996, provides in material 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 costs incurred for attorney's fee . . . Provided, That cost for attorney's ...