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DAVID GUNTHER v. COMMONWEALTH PENNSYLVANIA (05/14/82)

decided: May 14, 1982.

DAVID GUNTHER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ABELOFF PONTIAC, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of David Gunther v. Abeloff Pontiac, No. A-77568.

COUNSEL

Cal A. Leventhal, Borden & Leventhal, for petitioner.

Matthew R. Sorrentino, with him Larry Pitt and Barbara L. Hollenbach, Holland, Taylor and Sorrentino, for respondent, Abeloff Pontiac.

President Judge Crumlish and Judges Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Mencer did not participate in the decision in this case.

Author: Macphail

[ 66 Pa. Commw. Page 488]

David Gunther (Petitioner) appeals from an order of the Workmen's Compensation Appeal Board (Board) insofar as it reversed a referee's award of attorney's fees pursuant to Section 440 of The Pennsylvania Workmen's Compensation Act (Act).*fn1

Petitioner was employed by Abeloff Pontiac (Respondent) as a mechanic and repairman when he suffered a heart attack while at work on January 3, 1978. A notice of denial of workmen's compensation liability was sent to Petitioner by Respondent's insurance carrier on or about January 25, 1978.*fn2 Petitioner filed a

[ 66 Pa. Commw. Page 489]

    claim petition on November 30, 1978 and alleged therein that the heart attack occurred while he was "engaged in normal work activity of pushing a pickup truck into the work area in preparation for repairing its transmission." Respondent filed an answer to the claim petition denying, inter alia, that the heart attack was causally related to Petitioner's work.

Respondent's challenge to the petition was based on two letters written by Petitioner's treating physician in January and April, 1978 which, Respondent argues, raised a doubt as to causation sufficient to justify its denial of liability. Prior to the scheduled referee's hearing, however, Petitioner's physician wrote another letter in which he unequivocally stated that there was a causal connection between the heart attack and Petitioner's work. Respondent subsequently admitted liability and entered into a compensation agreement with Petitioner, effective March 16, 1979.

Since a notice of compensation payable was ultimately entered in this case, the two hearings before the referee were limited to the issues of attorney's fees and the subrogation interest of Blue Cross and Blue Shield. The instant appeal concerns only the issue of whether or not attorney's fees should be granted to Petitioner. The referee decided that the fees should be awarded because the Respondent's initial "denial of compensation was unreasonable." The Board reversed, concluding that the Respondent's contest was reasonable, and the instant appeal was taken.

A claimant is entitled to an award of attorney's fees under Section 440 of the Act unless the record supports a conclusion ...


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