Appeal from the Order of the Workmen's Compensation Appeal Board and Liquor Control Board et al., in case of Ella G. Ehrhart v. Pennsylvania Liquor Control Board, No. A-81907.
P. Nelson Alexander, for petitioner.
John W. English, Jr., with him Gary F. DiVito, Chief Counsel, and Paul Dufallo, for respondents.
Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 78 Pa. Commw. Page 124]
This case comes here on appeal, pursuant to Section 763(a)(1) of the Judicial Code, 42 Pa. C.S. § 763(a)(1), from an order of the Workmen's Compensation Appeal Board (Board) affirming the referee's order denying payment of attorney fees and assessment of a penalty.
On November 25, 1975, Ella Ehrhart (claimant) incurred back injuries while in the course of her employment for the Pennsylvania Liquor Control Board (employer). After a series of delays, a referee handed down a decision on July 17, 1981 ordering payment of total disability benefits but denying both payment of attorney fees and imposition of a penalty.
The claimant asserts that attorney fees should have been assessed pursuant to Section 440 of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996, which provides as follows:
In any contested case where the insurer has contested liability in whole or in part, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney fees. . . . Provided, that cost for attorney fees may be excluded
[ 78 Pa. Commw. Page 125]
when a reasonable basis for the contest has been established.
Whether or not an employer's contest is a "reasonable one" is a question of law. Stone Container Corp. v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 384, 413 A.2d 17 (1980). The primary question in determining the reasonableness of an employer's contest is whether the contest was brought to resolve a genuinely disputed issue or merely for purposes of harassment. Workmen's Compensation Appeal Board v. Denny, 25 Pa. Commonwealth Ct. 395, 360 A.2d 306 (1976); Landis v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 491, 402 A.2d 723 (1979). As a defense to the present action, the employer argued that the injury was not within the claimant's scope of employment. To support this proposition, evidence was offered indicating that the injury occurred while the employee was engaging in activity which was not part of her normal duties and which she was not ordered to do. Such evidence goes directly to the scope of employment and, furthermore, leads to the conclusion that the employer's contest was to dispute a genuine issue and not merely to harass the claimant.*fn1
The claimant also argues that a penalty should be imposed for excessive and unreasonable delay pursuant to Section 435 of the Act, 77 ...