Appeal from the Order of the Workmen's Compensation Appeal Board in case of Alberta Diffenderfer, w/o Claude E. v. R.M. Friction Materials Co., Div. of Raybestos-Manhattan, Inc., No. A-75305 -- C.C.A. -- 75304.
John C. McFadden, with him Thomas F. McDevitt, for petitioner.
J. David Young, for respondent, submitted on briefs.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 52 Pa. Commw. Page 280]
This is an appeal from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of attorney's fees. Petitioner (employer) limited its appeal to this Court to the contention that the Board committed errors of law in concluding that the employer's contest was unreasonable
[ 52 Pa. Commw. Page 281]
and in affirming the award of attorney's fees. We remand.
The employee worked in the employer's plant for almost 30 years; his last day at work was July 31, 1974. The employee filed his claim petition on December 5, 1974, claiming that he was totally disabled from asbestosis. Asbestosis is a compensable occupational disease under Section 108(l) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, as amended, 77 P.S. § 27.1(l). During the pendency of his claim for compensation, the employee died as a result of asbestosis. The employee's widow thereafter filed a fatal claim petition. A hearing on the two petitions was held before the referee on May 26, 1976. The widow and the decedent's physician, a pulmonary disease specialist, testified; the employer offered no witnesses. The medical evidence included extracts from the records of Lancaster General Hospital gathered during periods of services rendered to the decedent between October 22, 1974 and May 19, 1975. The referee found that the decedent's total disability from July 31, 1974 to May 19, 1975 and his death were due to the occupational disease asbestosis. The referee awarded the widow lifetime compensation the decedent would have received and survivor benefits. Having found that the employer's contest was unreasonable, the referee also awarded, over and above those compensation awards, attorney's fees in the amount of 20 percent of the life-time award and attorney's fees in the amount of $2,500.00 for the death claim. The employer's appeal to the Board concerned only the imposition of the attorney's fees, and the Board affirmed the awards.
Section 440 of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996, provides in pertinent part:
[ 52 Pa. Commw. Page 282]
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. . . .
The employer here contends that the Board committed an error of law in concluding that its contest was unreasonable. The question of the ...