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ELSIE EDMOND v. COMMONWEALTH PENNSYLVANIA (06/21/79)

decided: June 21, 1979.

ELSIE EDMOND, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, DEVON APPAREL, INC. & PENNA. MANUF. ASSOC. INS. CO., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Elsie Edmond v. Devon Apparel, Inc., No. A-73617.

COUNSEL

Paul Auerbach, for petitioner.

Howard Ellner, with him John F. McElvenny, and Marcy B. Tanker, for respondents.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 43 Pa. Commw. Page 459]

Elsie Edmond (Claimant) suffered a work-related injury on January 17, 1974. She started receiving weekly compensation benefits under an agreement entered into with her employer's insurance carrier. These benefits were suspended, however, after a company doctor found her able to resume, without limitation, her previous work responsibilities. Relying on an affidavit to this effect, signed by the doctor, the employer filed a petition to terminate compensation.

The referee, after conducting several hearings, concluded that Claimant was still disabled as a result of the injury and denied the petition for termination. Both parties took appeals from this order to the Workmen's Compensation Appeal Board (Board). Claimant's appeal was predicated on the referee's failure to award attorney's fees and to impose penalties. The Board affirmed the referee's order denying the petition to terminate, but dismissed Claimant's appeal. Claimant thereupon filed the instant petition for review. The employer did not appeal the Board's decision.

In cases involving petitions for termination which are resolved in favor of the employe, an award of

[ 43 Pa. Commw. Page 460]

    attorney's fees is ordinarily the rule, with their exclusion being proper only where the record has established a reasonable basis for the contest. Poli v. Workmen's Compensation Appeal Board, 34 Pa. Commonwealth Ct. 630, 384 A.2d 596 (1978); Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, 332 A.2d 885 (1975); Section 440 of The Pennsylvania Workmen's Compensation Act (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. ยง 996. We have previously held that a contest is unreasonable "where no conflicting medical evidence was presented regarding the 'contested' issues of the claimant's disability and his continued treatment for an injury." Poli v. Workmen's Compensation Board of Review, supra at 634, 384 A.2d at 598 (footnotes omitted).

Although Claimant's employer supported its termination petition with an affidavit signed by Dr. Atella, this doctor was not produced as a witness. Instead, the employer presented Dr. Kambin to verify that Claimant's disability had terminated. Dr. Kambin had examined Claimant only once, and then not until one year after the accident. As the Board correctly observed, Dr. Kambin's entire testimony was based on the erroneous assumption that the accident had in no way aggravated Claimant's neck condition. This error resulted from the employer's failure to provide Dr. Kambin with Claimant's medical reports. On the other hand, the testimony of Claimant's physician, Dr. Jacobsen, coupled with her own independent testimony, clearly established that her neck was in fact injured and that she is unable to do any type of factory work or return to her former position. The referee obviously found this testimony to be convincing as he disallowed the employer's petition for termination.

[ 43 Pa. Commw. Page 461]

The problem we are faced with, however, is that despite the absence of conflicting medical evidence regarding the contested issues of Claimant's disability, the referee omitted any mention of attorney's fees. It is, of course, axiomatic that the "reasonableness of contest" is a legal conclusion that must be arrived at based on facts as found by the referee which are supported by substantial evidence. Ratchko v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 585, 377 A.2d 1012 (1977); Hartman v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 609, 333 A.2d 819 (1975). In order for this Court, and the Board, to review such a conclusion to determine whether an error of law has been committed, the referee must first be given an opportunity ...


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