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IRMA JEAN MESSER v. COMMONWEALTH PENNSYLVANIA (06/26/81)

decided: June 26, 1981.

IRMA JEAN MESSER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Irma Messer v. Commonwealth of Pennsylvania, Department of Public Welfare, No. A-76955.

COUNSEL

Lawrence Solomon, for petitioner.

Paul J. Dufallo, Associate Counsel, for respondent, State Workmen's Compensation Appeal Board.

James S. Marshall, Assistant Attorney General, for respondent, Department of Public Welfare.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 60 Pa. Commw. Page 222]

In this workmen's compensation appeal by Irma Jean Messer (claimant), the sole issue before us is whether the Workmen's Compensation Appeal Board erred in denying the claimant attorney's fees, after an unsuccessful effort by her employer to terminate her compensation.*fn1 Claimant contends that the termination proceeding initiated by her employer had no reasonable basis and that, therefore, she is entitled to attorney's fees.

The controlling law on this issue is 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. ยง 996, which provides that attorney's fees are not due as part of a claimant's award where "a reasonable basis for the contest has been established." Whether there exists a reasonable basis for a contest of liability is a question of law based on the record. Harmar Coal Co. v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 98, 381 A.2d 215 (1977).

The record reveals that claimant was employed by the Department of Public Welfare (employer) as a cook at Haverford State Hospital. On June 22, 1972, she sustained an injury when she slipped on a wet floor while performing her duties. That injury has been diagnosed as a protruded lumbar disc. As a result of her injury, claimant collected workmen's compensation benefits at the rate of $79.19 per week for

[ 60 Pa. Commw. Page 223]

    total disability. In 1974, employer sought to reduce the rate of compensation, but this was disallowed by the referee after review and total disability benefits continued.

Then, on March 18, 1977, the employer filed a Petition to Terminate compensation, contending that disability had ceased as of March 8, 1977. As grounds for that contention, employer attached an affidavit of recovery signed by Dr. John Williams, who had examined the claimant on employer's behalf on March 8, 1977.

At the subsequent hearing before the referee, Dr. Williams testified that there was the possibility that claimant had sprained her back but that there was no permanent physical disability. The doctor further testified that his determination that claimant possessed no permanent physical disability was based in part on the fact that during the course of his examination of claimant, she claimed to be experiencing pain in areas where no pain should have existed, given the type of injury she had. It ...


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