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ELSIE EDMOND v. WORKMEN'S COMPENSATION APPEAL BOARD (08/30/82)

decided: August 30, 1982.

ELSIE EDMOND, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD, (DEVON APPAREL, INC. ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Elsie Edmond, No. A-79644.

COUNSEL

Paul Auerbach, for petitioner.

Robert N. Felner, with him Robert J. Heller, for respondents.

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

Author: Doyle

[ 68 Pa. Commw. Page 484]

Elsie Edmond (Claimant) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's denial of her request for attorney's fees and penalties pursuant to the provisions of Sections 440 and 435(d) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. ยงยง 996 and 991(d), respectively. We affirm.

On January 17, 1974, Claimant slipped and fell on a hardwood floor while working as a collar presser for Devon Apparel, Inc. (Devon), and as a result of this fall, was unable to continue working. Thereafter, Devon's insurer, the Pennsylvania Manufacturer's Association Insurance Company (P.M.A.I. Co.), began to pay Claimant disability benefits pursuant to a Notice of Compensation payable dated February 12, 1974, which described her injury as a "[c]ontusion of left shoulder; left knee." On March 14, 1974, however, Devon and P.M.A.I. Co. filed a termination petition alleging that Claimant's disability had ceased on or before February 25, 1974, and supplemented this petition with an affidavit of recovery signed by a Dr. Ernest F. Atella who had examined Claimant on February 25, 1974. As a result of this affidavit, an automatic supersedeas was issued, and four days of hearings on the petition were conducted before a referee on February 19, 1975, July 10, 1975, October 28, 1975, and March 30, 1976. From the evidence adduced at these hearings, the referee concluded that Claimant's disability, which he did not describe in his decision, had not ceased, and accordingly denied

[ 68 Pa. Commw. Page 485]

    the termination petition. In this decision, however, the referee failed to address the questions of whether Claimant was entitled to an award of attorney's fees and penalties, even though Claimant had specifically requested a penalty hearing at the conclusion of the March 30, 1976 hearing.*fn1 Claimant subsequently appealed this decision to the Board alleging, inter alia, that the referee erred as a matter of law by failing to award counsel fees, and by not conducting a penalty hearing. Thereafter, Devon and P.M.A.I. Co. filed a cross appeal contesting, inter alia, the referee's findings that Claimant's disability had not terminated. In an opinion and order dated July 6, 1978, the Board affirmed the referee's dismissal of the termination petition, and dismissed Claimant's appeal "based on our [the Board's] observation that there was a reasonable basis for Defendant's belief that Claimant's disability had terminated. . . ." Claimant subsequently appealed the determination to this Court, and in the case of Edmond v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 458, 402 A.2d 715 (1979), we remanded the case to the referee so that he could make specific findings as to why he did not award attorney's fees, and so that he could hold a penalty hearing pursuant to the mandate of Section 435(d) of the Act. See Crangi Distributing Company v. Workmen's Compensation Appeal Board, 17 Pa. Commonwealth Ct. 530, 333 A.2d 207 (1975). Following a remand hearing, conducted on October 16, 1979, the referee, in a decision dated August 6, 1980, denied Claimant's request for attorney's fees

[ 68 Pa. Commw. Page 486]

    and penalties. In his decision, the referee concluded that Claimant was disqualified from receiving attorney's fees under Section 440 of the Act since her employer had a reasonable basis for contesting her eligibility for benefits, that basis being the testimony of a Dr. Parvin Kambin who testified during the February 19, 1975 referee's hearing that he had concluded from his examination of Claimant on January 15, 1975, that Claimant had fully recovered from her January 17, 1974 accident, and was capable of resuming work. The referee further concluded that Claimant was not entitled to an award of penalties under the provisions of Section 435(d) of the Act since neither Devon nor P.M.A.I. Co. had violated any provision of the Act, any rule or regulation, or any rule of procedure. On appeal, the Board affirmed this decision, and the present appeal followed.

Before this Court, Claimant initially asserts that the Board was precluded from finding as a fact on remand that there was a conflict of medical evidence in this case since we employed language in our initial remand decision which indicated that we saw no such conflicting evidence in the record before us.

While it is indeed true that we stated in our initial decision in this matter that we saw "an absence of conflicting medical evidence regarding the contested issues of Claimant's disability," Edmond at 461, 402 A.2d at 716, it is clear from the result of that case that such language constituted dicta, and was not binding on the workmen's compensation authorities below. As we have repeatedly held, the question of the reasonableness of an employer's contest for the purpose of awarding attorney's fees is a "legal conclusion that must be arrived at based on the facts as found by ...


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