Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Francis Cavanaugh, Jr. v. United States Steel Corporation, No. A-76001.
Patrick F. McArdle, with him McArdle, Carocelli, Spagnolli & Beachler, for petitioner.
Roger L. Wisa, with him, James D. Strader and Louis A. Raimond, for respondents.
Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 50 Pa. Commw. Page 496]
Petitioner (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) affirming and modifying the referee's order which awarded to Claimant workmen's compensation and attorney's fees without any diminution of the compensation, interest and costs awarded to Claimant. The Board directed the respondent (Employer) to deduct the attorney's fees from the award. Claimant contends that the Board erred in concluding that the Employer had a reasonable basis for the contest and seeks reinstatement of the award by the referee.
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. § 996, provides in pertinent 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 fees may be excluded when a reasonable basis for the contest has been established. . . .
"[T]he award of attorney's fees is the rule and their exclusion is the exception to be applied in cases where the record establishes that the employer's or carrier's contest is reasonably based." Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, 565, 332 A.2d 885, 887 (1975). Whether there
[ 50 Pa. Commw. Page 497]
exists a reasonable basis for a contest of liability is a question of law based on the record, on which the Board could rule. Harmar Coal Co. v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 98, 381 A.2d 215 (1977).
On August 22, 1977 Claimant sustained a crush-type injury to his left index finger in the course of his employment as a roll turner for Employer. An agreement for compensation for the loss of one-half of the finger was filed with the Bureau of Occupational Injury and Disease Compensation on September 22, 1977. On May 4, 1978 Claimant filed his claim petition seeking compensation under Section 306(c)(10) of the Act, 77 P.S. § 513(10), for the loss of use of his left index finger. Employer filed an answer denying the material allegations made in Claimant's petition.
At the first hearing before the referee Claimant testified as to the nature of his injury and extent of his loss, but produced no medical evidence setting forth an expert opinion concerning the loss of use of Claimant's left index finger. Employer's counsel cross-examined Claimant. The fact that Employer's only evidence was that which it adduced by cross-examination does not render its basis for contest per se unreasonable. Vovericz v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 94, 398 A.2d 734 (1979). The case was continued so that Claimant could be examined by a doctor on Claimant's behalf and by a doctor on behalf of the Employer. Those examinations were conducted and the opinions expressed by ...