Appeal from the Order of the Workmen's Compensation Appeal Board in case of Wilbert Kane v. City of Philadelphia, No. A-79185.
Sheldon Nerenberg, with him Allen L. Feingold, for petitioner.
Mary Rose Cunningham, Assistant City Solicitor, with her Judith N. Dean, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for respondent, City of Philadelphia.
Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
[ 62 Pa. Commw. Page 193]
Wilbert Kane seeks review of a decision of the Workmen's Compensation Appeal Board reversing a referee's imposition of attorney's fees and penalties against his employer, the City of Philadelphia.
The undisputed facts are that on January 26, 1977, while he was employed as a police officer by the City of Philadelphia the claimant sustained a work related injury to his neck and back. He filed a claim petition
[ 62 Pa. Commw. Page 194]
related to this injury on March 30, 1979. The City's responsive Answer denied all of the allegations contained in the claim petition except those related to the claimant's status as a city employee.
Several referee's hearings were scheduled for dates in May, July, and September, 1979, and continued at the request of counsel. On November 2, 1979, a hearing was held before Referee Jackson at which time no witnesses were sworn and no documentary evidence was introduced by either party. In an extensive colloquy between the referee and counsel it became clear that the City was no longer contesting its liability on the claim but had refused to pay any of the medical bills submitted to it on the ground that two of the bills were not accompanied by what it felt to be necessary explanatory documentation. No justification was offered for the failure of the City to tender payment of the undisputed portion of the claimant's medical expenses.
A further hearing was held on February 4, 1980, for the purpose of adducing argument related to the claimant's request that the award include penalties and attorney's fees. At the close of the argument, the referee indicated that he did not believe such an award was warranted. However, in his decision entered May 12, 1980, Referee Jackson concluded:
1. Defendant did not have a reasonable basis to contest this claim.
2. Defendant should have paid all Claimant's medical expenses on October 10, 1978, when it was originally received, which would not have required the Claimant to engage an attorney to represent him at numerous hearings, and for claimant to appear at three ...