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COOPER-JARRETT v. COMMONWEALTH PENNSYLVANIA (07/22/81)

decided: July 22, 1981.

COOPER-JARRETT, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROBERT D. BROWN, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert D. Brown v. Cooper-Jarrett, Inc., No. A-75103.

COUNSEL

Anthony J. Basinski, Reed, Smith, Shaw & McClay, for petitioner.

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for respondent, Robert D. Brown.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 61 Pa. Commw. Page 13]

This is an appeal by Cooper-Jarrett, Inc. (employer) from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of compensation and attorney's fees to Robert D. Brown (claimant). We affirm in part and reverse in part.

The claimant worked for the employer as an over-the-road truck driver. He alleged that he injured his head, neck, and shoulders on June 17, 1977 when, on three separate occasions, his head inadvertently struck the cab roof of a truck he was driving on rough sections of Interstate 80. The employer denied that the claimant suffered an injury in the manner alleged.

Before the referee, the claimant offered the deposition of Dr. Daniel A. Scarnecchia. The doctor testified that, subsequent to June 17, 1977, he treated the claimant for cervical strain with sprain and cervical myositis. The referee determined from the doctor's testimony that the claimant was totally disabled from performing his former occupation and that the disability arose from the June 17, 1977 accidents.

The employer offered the deposition of its own medical doctor who opined that no accident caused the claimant's condition and that the claimant was fully capable of resuming his former job. The referee found Dr. Scarnecchia's testimony to be both competent and the more credible. Additionally, the referee sua sponte awarded attorney's fees to the claimant and against the employer, pursuant to Section 440 of The

[ 61 Pa. Commw. Page 14]

Pennsylvania Workmen's Compensation Act.*fn1 He determined that the employer had no reasonable basis to contest the claim petition when it filed its notice of compensation denial on July 31, 1977 and continued lacking the grounds for a reasonable contest until the claimant was examined by its medical expert more than five months after the alleged accident.

On appeal, the employer, inter alia, contends that (1) Dr. Scarnecchia's testimony does not constitute legally competent evidence and (2) the referee erred in awarding attorney's fees where ...


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