Appeals from the Order of the Workmen's Compensation Appeal Board in case of William Glinka v. Sears, Roebuck & Company, No. A-76131.
Paul Auerbach, for petitioner, William Glinka.
Susan McLaughlin, with her David L. Pennington, Harvey, Pennington, Herting & Renneisen, Ltd., for respondent, Sears, Roebuck & Company.
President Judge Crumlish, Jr. and Judge Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 75 Pa. Commw. Page 506]
William Glinka (claimant) and Sears, Roebuck and Company (Sears or employer) both appeal from an order of the Workmen's Compensation Appeal Board (Board) which affirmed as modified a referee's order from which claimant, and not employer, appealed.
On September 30, 1972, while employed by Sears as a debt collector, claimant suffered lower back injuries in an automobile accident. By agreement, claimant received compensation at a rate of $80.00 per week until he returned to work on November 27, 1972, and executed a final receipt which terminated benefits. Upon the recurrence of his disability, claimant left work on January 8, 1973, and entered into a supplemental compensation agreement (with Sears) guaranteeing claimant compensation at a rate of $80.00 per week for the duration of his total disability and payment of all hospital and medical expenses related thereto.*fn1
[ 75 Pa. Commw. Page 507]
On February 24, 1975, claimant filed a petition to modify the supplemental compensation agreement alleging, inter alia, that Sears had failed to pay claimant's medical and hospital expenses engendered by the accident. After two hearings (at which employer adduced no evidence) the referee, on July 20, 1976, found that claimant was owed compensation at a rate of $94.00, and not $80.00 per week;*fn2 that employer was liable for payment of all medical expenses resulting from claimant's injury and legal costs in prosecuting the claim; that 10% interest per annum be assessed on all (non-medical) deferred compensation; and, that attorney's fees equaling 20% of claimant's initial gross recovery (not future compensation) be imposed. Both sides appealed.
[ 75 Pa. Commw. Page 508]
The Board affirmed the referee's order regarding employer's obligation to satisfy all medical and legal expenses, and modified the order by assessing interest on all (medical and non-medical) deferred compensation and awarded attorney's fees based on the initial recovery and future compensation. Concluding that the referee erred in deeming reimbursed mileage expenses as compensation, the Board reduced claimant's award to $87.50.*fn3 Additionally, the Board remanded to determine whether claimant's counsel was entitled to counsel fees greater than 20% and on the question of penalties.
In a decision dated October 5, 1978, the referee awarded attorney's fees equivalent to 30% of the gross recovery (which included wage loss compensation and all medical expenses accruing to the date of the decision) and all future compensation; a penalty equal to 10% of the gross recovery was also assessed against employer.*fn4
Claimant, but not the employer, appealed from the referee's order of October 5, 1978. The Board in a decision dated April 23, 1981, dismissed claimant's appeal and, ...