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HELEN V. BAMBINO v. WORKMEN'S COMPENSATION APPEAL BOARD (ROHM & HAAS COMPANY) (02/09/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 9, 1983.

HELEN V. BAMBINO, WIDOW OF EDMOND E. BAMBINO, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ROHM & HAAS COMPANY), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Helen V. Bambino, Widow of Edmond E. Bambino v. Rohm & Haas Company, No. A-79925.

COUNSEL

Spencer A. Manthorpe, Hepburn, Willcox, Hamilton & Putnam, for petitioner.

John F. McElvenny, for respondents.

President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Rogers concurs in the result only.

Author: Crumlish

[ 71 Pa. Commw. Page 640]

Helen V. Bambino appeals a Workmen's Compensation Appeal Board order which affirmed a referee's denial of counsel fees. We affirm.

Bambino's husband filed a claim for workmen's compensation after he contracted an occupational disease. Prior to his claim's resolution, he died, and Bambino filed and reached settlement on a fatal claim petition. Bambino, alleging that the insurer had not established a "reasonable basis" for contesting her claim, petitioned for counsel fees under Section 440 of the Workmen's Compensation Act.*fn1 The referee denied the petition and the Workmen's Compensation Appeal Board affirmed the denial.

Under Section 440, the denial of counsel fees is proper only where the insurer has established a reasonable basis for the contest. Kane v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 192, 435 A.2d 312 (1981). Whether the insurer has satisfied this burden is a legal question and, hence, subject to our review. Beaver Supermarket v. Workmen's Compensation Appeal Board, 56 Pa. Commonwealth Ct. 505, 424 A.2d 1023 (1981).

Bambino argues that the denial of counsel fees was erroneous because the insurer did not have a

[ 71 Pa. Commw. Page 641]

"reasonable basis" for contesting the compensation claim. Bambino has grounded this contention solely upon the fact that the insurer's only apparent motive in contesting the compensation claim was to obtain a general release of all potential civil claims. However, an insurer's motive in contesting a compensation claim is clearly irrelevant to the question of whether it has a "reasonable basis," or sound foundation, upon which the claim can rationally be defended. Cf., e.g., Gunther v. Workmen's Compensation Appeal Board, 66 Pa. Commonwealth Ct. 487, 444 A.2d 1342 (1982) (unreasonable contest will be found where contest is determined to be frivolous*fn2 or where no countervailing evidence had been introduced). Therefore, as Bambino has advanced no other grounds in support of her assertion of error, this contention must be rejected.*fn3

Affirmed.

Order

The Workmen's Compensation Appeal Board order of June 11, 1981, in A-79925, is hereby affirmed.

Judge Rogers concurs in the result only.

Disposition

Affirmed.


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