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J.R. SALES v. COMMONWEALTH PENNSYLVANIA (12/30/77)

decided: December 30, 1977.

J.R. SALES, INC. AND OLD REPUBLIC COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN HRINKO, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Hrinko v. J.R. Sales, Inc. and Commonwealth of Pennsylvania, No. A-71581.

COUNSEL

George H. Thompson, with him Hirsch, Weise & Tillman, for petitioners.

Gerard Long, with him James N. Diefenderfer, for respondents.

Mary Ellen Krober, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, for Commonwealth.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 33 Pa. Commw. Page 116]

J.R. Sales, Inc. and Old Republic Companies have appealed from that part of a decision of the Workmen's Compensation Appeal Board which affirmed a referee's order directing J.R. Sales, Inc., the claimant's employer and/or its insurance carrier, Old Republic Companies, to pay $150.00 to Eugene A. Creany, Esquire, counsel for claimant in this case, as reimbursement for the medical testimony fees paid to the claimant's doctor who testified, at the request of J.R. Sales, Inc., at a hearing before the referee. We affirm the Board's order.

The claimant, John Hrinko, retired from employment in the coal mining industry on March 16, 1974 after having worked underground in the mines for 36

[ 33 Pa. Commw. Page 117]

    years. On November 28, 1975, he filed a claim petition for coal worker's pneumoconiosis with the Bureau of Occupational Injury and Disease Compensation. A hearing was held on February 18, 1976 at which the claimant testified and presented a medical report from his physician. At the request of J.R. Sales, Inc., a second hearing was held on April 22, 1976 for the purpose of allowing cross-examination of the claimant's doctor.

The referee awarded benefits under Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(q). He assessed 75% of compensation payable against the employer and/or its insurance carrier and 25% against the Commonwealth pursuant to Section 305.1 of the Act, 77 P.S. § 411.1. The referee also assessed the $150 fee for medical testimony against the employer and/or insurer as provided by Section 440 of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25.

In this appeal, J.R. Sales, Inc. argues that Section 440 of the Act, 77 P.S. § 996 violates the Equal Protection clause contained in the Fourteenth Amendment to the United States Constitution, and Article I, Section 26 of the Pennsylvania Constitution, providing that the Commonwealth shall not discriminate against any person in the exercise of any civil right. Section 440 provides:

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 compensation, a reasonable sum for costs incurred ...


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