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ROBERTA J. MCGOWAN v. COMMONWEALTH PENNSYLVANIA (07/15/81)

decided: July 15, 1981.

ROBERTA J. MCGOWAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, BEAVER VALLEY GERIATRIC CENTER AND ROCKWOOD INSURANCE COMPANY, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Roberta J. McGowan v. Beaver Valley Geriatric Center, No. A-77255.

COUNSEL

David M. McCloskey, Will & Keisling, for petitioner.

Leonard P. Kane, Jr., Fried, Kane, Walters & Zuschlag, for respondents.

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

Author: Mencer

[ 60 Pa. Commw. Page 508]

Roberta J. McGowan (claimant) appeals from a denial of attorney's fees by the Workmen's Compensation Appeal Board (Board) which reversed a referee's award of attorney's fees because it concluded

[ 60 Pa. Commw. Page 509]

    that a contest of her compensation claim by the Beaver Valley Geriatric Center, Inc. (employer) and its insurer, Rockwood Insurance Company (insurance carrier), was reasonable. The award itself is not at issue in this appeal.

The claimant, a nurse's aide, filed a claim petition alleging a work-related back injury on March 7, 1978. The employer and the insurance carrier filed an answer to the petition, which specifically denied that the claimant sustained an injury while in the course of her employment. Earlier, on August 18, 1977, the claimant had suffered a job-related back injury for which she had received workmen's compensation benefits. On or about January 27, 1978, the employer filed a termination petition pertaining to the first injury, which alleged that the claimant's disability ceased as of January 20, 1978. The referee heard both petitions together.

The referee suspended compensation regarding the first injury, effective as of January 28, 1978, awarded the claimant total disability compensation for the second injury of March 7, 1978 from March 8, 1978 to September 11, 1978, and awarded her partial disability compensation thereafter because she had taken a job which paid a salary somewhat less than her average weekly wage.

The referee also awarded attorney's fees to the claimant and against the employer and the insurance carrier because he felt that they were without a reasonable basis to contest the second claim petition. The employer and insurance carrier appealed to the Board to contest their liability both for the award of disability compensation and the award of attorney's fees. The Board sustained the referee's decision as to the award of disability compensation but reversed that portion concerning the award of attorney's fees.

[ 60 Pa. Commw. Page 510]

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, ...


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