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FREDERICO GRANERO COMPANY v. COMMONWEALTH PENNSYLVANIA (01/03/80)

decided: January 3, 1980.

FREDERICO GRANERO COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND MARIA P. GRANERO, WIFE OF JORGE A. GRANERO, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Maria P. Granero, widow of Jorge A. Granero v. Frederico Granero Company, No. A-73138.

COUNSEL

Martin J. Fallon, Jr., with him Swartz, Campbell & Detweiler, for petitioner.

Harris J. Sklar, with him Arthur M. Rosenbaum, Allan J. Sagot, and Gross & Sklar, P.C., for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge DiSalle.

Author: Disalle

[ 48 Pa. Commw. Page 253]

This petition for review, arising under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., was first heard by a panel of Judges and subsequently

[ 48 Pa. Commw. Page 254]

    reargued before the Court en Banc. It raises the issue of whether a dependent of a deceased employe may receive benefits to which that employe may have been entitled when no claim was filed during the employe's lifetime.

The referee, with the Workmen's Compensation Appeal Board (Board) affirming, made an award to the widow of Jorge A. Granero which included death benefit compensation, lifetime disability compensation, lifetime medical expense, counsel fees and witness costs. Frederico Granero Company (Employer) disputes only those portions of the award (1) awarding lifetime medical expenses, and (2) assessing counsel fees based on (a) lifetime medical expenses and (b) witness costs.*fn1 We shall affirm the award insofar as it provides for medical expenses but reverse insofar as it awards attorney fees thereon.*fn2

On January 23, 1976, while in the course of his employment with Employer, Jorge Granero was seriously injured in an explosion and fire. From that date until his death on February 9, 1976, he remained

[ 48 Pa. Commw. Page 255]

    hospitalized in critical condition. On May 14, 1976, his widow filed a fatal claim petition seeking compensation as a deceased employe's dependent. After several hearings, the referee made the award described above. The Board affirmed and Employer filed the instant petition for review.

Section 410 of the Act, 77 P.S. § 751, provides in pertinent part as follows:

If, after any injury, the employer or his insurer and the employee or his dependent, concerned in any injury, shall fail to agree upon the facts thereof or the compensation due under this act, the employe or his dependents may present a claim ...


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