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JULIUS ELEK v. COMMONWEALTH PENNSYLVANIA (10/21/80)

decided: October 21, 1980.

JULIUS ELEK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND HERCO, INC., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Julius Elek v. Herco, Inc., No. A-75507.

COUNSEL

Thomas L. Kennedy, Kennedy, Carlyon & Conahan, for petitioner.

Patricia A. Toland, with her Daniel F. Monahan and Sharon F. Harvey, for respondents.

Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 54 Pa. Commw. Page 300]

In this workmen's compensation appeal, the claimant*fn1 questions a denial of attorney's fees by the board,*fn2 which reversed the referee because the board concluded that the employer's*fn3 contesting of the claim was reasonable. The award itself is not at issue in this appeal.*fn4

Attorney's fees are awarded under Section 440 of The Pennsylvania Workmen's Compensation Act*fn5

[ 54 Pa. Commw. Page 301]

    when a claimant prevails, unless the evidence supports a conclusion that the employer had a reasonable basis for contesting liability. Landis v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 491, 402 A.2d 723 (1979). The scope of review of the board and this court is to review the conclusion made by the referee to see if an error of law has been committed. Hartman v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 609, 333 A.2d 819 (1975).

The board concluded that the contest was reasonable because claimant had applied for benefits for loss of use of his arm but received benefits for loss of use of his forearm; in addition, other factors, outlined below, gave employer reason to contest claimant's application, as the board viewed the case.

Claimant argues that employer's contest was unreasonable because the testimony of employer's own medical witness supports a finding of loss of use of a forearm. The record of the doctor's deposition refutes that contention:

Q. Now when you're talking about the area of Mr. Elek's injury, for example, you mentioned his upper arm from the elbow to the shoulder. I think you mentioned the forearm and hand. What would this wrist injury be properly described ...


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