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ELIZABETH MURRAY v. COMMONWEALTH PENNSYLVANIA (08/09/79)

decided: August 9, 1979.

ELIZABETH MURRAY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND STATE WORKMEN'S INSURANCE FUND, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Elizabeth Murray v. Philadelphia State Hospital, No. A-73991.

COUNSEL

Mark R. Cuker, with him R. David Bradley, for petitioner.

Martin W. Bashoff, Special Assistant Attorney General, for respondents.

Judges Crumlish, Jr., DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 45 Pa. Commw. Page 4]

Section 440 of The Pennsylvania Workmen's Compensation Act*fn1 provides that reasonable attorney's fees shall be awarded to a claimant who prevails on a contested claim unless the record discloses a reasonable basis for the employer's or insurer's contest.

This case is an appeal from an order of the Workmen's Compensation Appeal Board (Board) which deleted a referee's award of attorney's fees while affirming his decision in favor of the claimant in all other particulars. The deletion of attorney's fees is the sole issue presented.

[ 45 Pa. Commw. Page 5]

The record clearly establishes that claimant, a licensed practical nurse, fell and suffered a shoulder separation on her employer's premises on December 27, 1972. Claimant returned to work on March 12, 1973 while still experiencing pain and limitation of motion in her neck and shoulder area and continued to work until the severity of the pain forced her to leave work on January 21, 1974. She has continued medical consultation and treatment throughout the entire period, to the present.

She filed a petition for reinstatement of compensation on April 1, 1974, initiating the present case.

The Board's deletion of the award of attorney's fee was in reliance on Crangi Distributing Co. v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 530, 333 A.2d 207 (1975), apparently on the basis that the referee made no specific finding of fact on the issue of reasonable contest. The law does not so provide.

Poli v. Workmen's Compensation Appeal Board, 34 Pa. Commonwealth Ct. 630, 384 A.2d 596 (1978), summarizes the governing approach to this kind of issue:

A specific finding of fact on the issue of reasonable basis is not required under the Crangi case, and, in fact, this Court has held that the question of reasonable contest, while including factual inquiries, is ultimately a question of law. Ball v. Workmen's Compensation Appeal Board, 19 Pa. Commonwealth Ct. 157, 340 A.2d 610 (1975). Here, by awarding attorney's fees to the Appellant, the referee concluded as a matter of law that the basis for the insurer's contest was unreasonable. See Ratchko v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 585, 377 A.2d 1012

[ 45 Pa. Commw. Page 6]

(1977). It is this question of law which is on ...


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