No. 341 January Term, 1979, Appeal from the Order of the Commonwealth Court of April 11, 1979, No. 856, C.D. 1978, Reversing an Award of Counsel Fees Awarded by the Referee on April 26, 1977 No. 181-32-0109, and Affirmed by the Workmen's Compensation Appeal Board on March 30, 1978 Appeal No. A-73190.
Marc S. Jacobs, Philadelphia, for appellant.
Joseph R. Thompson, John C. Janos, Philadelphia, for Firestone Tire.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., concurred in the result.
This is an appeal by claimant's attorney from an order of the Commonwealth Court reversing an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of attorney's fees. We reverse and remand.
This case originated on February 15, 1973, when claimant's employer, Firestone Tire and Rubber Company, apparently on instructions from its insurance carrier, filed a petition for termination. Following a hearing, the referee dismissed the petition and ordered a suspension of benefits. He failed, however, to award counsel fees.*fn1 The Board affirmed. The Commonwealth Court, after determining that there had been no showing of a reasonable contest by the employer, reversed the Board and remanded for the purpose of determining the amount due claimant, after further hearing, as reasonable costs incurred for attorney's fees in connection with these proceedings. Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, 332 A.2d 885 (1975).
Following the hearing on remand, the referee ordered claimant's employer, through its insurance carrier, to pay $3,750 in counsel fees directly to claimant's attorney. The Board again affirmed and the employer and its insurance carrier appealed. A divided panel of the Commonwealth Court, relying on Section 442 of the Pennsylvania Workmen's Compensation Act (Act),*fn2 reversed the Board and disallowed the award of counsel fees. Firestone Tire and Rubber Co. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 601, 399 A.2d 1176, (1979). We granted claimant's petition for review.
Section 442 of the Act provides as follows:
All counsel fees, agreed upon by claimant and his attorneys, for services performed in matters before any referee or the board, whether or not allowed as part of a judgment, shall be approved by the referee or board as the case may be, providing the counsel fees do not exceed twenty per centum of the amount awarded. The official conducting any hearing, upon cause shown, may allow a reasonable attorney fee exceeding twenty per centum of the amount awarded at the discretion of the hearing official.
In cases where the efforts of claimants' counsel to produce a result favorable to the claimant but where no immediate award of compensation is made such as in cases of termination or suspension the hearing official shall allow or award reasonable counsel fees, as agreed ...