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OLLIE D. JONES v. COMMONWEALTH PENNSYLVANIA (03/09/82)

decided: March 9, 1982.

OLLIE D. JONES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND UNITED STATES STEEL CORPORATION, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ollie D. Jones v. U.S. Steel Corporation, No. A-79622.

COUNSEL

Joseph S. Bekelja, Margolis, Edelstein and Scherlis, for petitioner.

Robert C. Jones, with him James D. Strader, for respondent, United States Steel Corporation.

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

Author: Craig

[ 65 Pa. Commw. Page 209]

This is an appeal from an order of the Workmen's Compensation Appeal Board reversing a referee's decision to award penalties and attorney's fees to Ollie D. Jones, claimant, and modifying that award to give credit for benefits previously paid. The award of compensation benefits to the claimant is not on appeal.

By agreement, the claimant received compensation after he injured his right shoulder in a work-related incident on September 28, 1972. He returned to work, but suffered a serious injury to the same shoulder on April 3, 1978. On July 22, 1980, a referee awarded claimant benefits for that second injury, and ordered the employer to pay claimant's attorney's fees and a penalty of 20% of the total award.

[ 65 Pa. Commw. Page 210]

The board affirmed the referee's award of compensation, but ordered that the award of attorney's fees and the penalty be deleted. Furthermore, the board granted the employer a credit for sickness and accident benefits it had paid to claimant under a self-insurance plan.

We affirm the portion of the board's decision granting the employer credit for sickness and accident benefits paid under a self-insurance plan and reversing the referee's award of penalties, but we reverse that portion of the board's deicison that deletes the award of attorney's fees.

In construing Section 440 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 this court has held that "the award of attorney's fees is the rule and their exclusion is the exception to be applied in cases where the record establishes that the employer's or carrier's contest is reasonably based." Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, 565, 332 A.2d 885, 887 (1975).

In reviewing this question of law,*fn2 we have previously held that a contest ...


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