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CHERIE T. WOMMER v. WORKMEN'S COMPENSATION APPEAL BOARD (LYCOMING COUNTY) (07/31/84)

decided: July 31, 1984.

CHERIE T. WOMMER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (LYCOMING COUNTY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Cherie T. Wommer v. Lycoming County, No. A-82450.

COUNSEL

Ambrose R. Campana, for petitioner.

Jonathan E. Butterfield, Liebert, Short, Fitzpatrick & Lavin, for respondent, Lycoming County.

Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 84 Pa. Commw. Page 276]

This appeal results from an order of the Workmen's Compensation Appeal Board (Board) which affirmed an award of the referee ordering Lycoming County (employer) to pay counsel fees of Cherie T. Wommer (claimant). Despite a request by claimant and her attorney, Ambrose R. Campana, seeking fees of $698.93, the referee set the fee at $85.20.

Claimant injured her back while in the employ of Lycoming County at the Lysock View Nursing Home in 1978. Following a short period during which she collected compensation benefits, claimant signed a final receipt and returned to work. In 1979, she reinjured her back, forcing her to miss four weeks of work. She subsequently filed this claim petition. Following a hearing, the referee found claimant was entitled to collect compensation of $106.50 a week for the

[ 84 Pa. Commw. Page 277]

    four weeks of work she had missed; further, the employer was ordered to pay claimant's medical bills of $3,175.15 thus amounting to a total claim of $3,601.15. The referee also found the employer had failed to present a reasonable contest to the claim petition; as the fee agreement between claimant and Mr. Campana called for a fee of 20% of the award, the referee ordered the employer to pay Mr. Campana 20% of the award.

A dispute then arose between the employer and Mr. Campana. The employer read the referee's award as requiring it to pay Mr. Campana $85.20 (20% of $106.50 a week for four weeks) while Campana sought payment of $698.93 (20% of total award of $3,601.15). When informed of the dispute, the referee, by letter of September 23, 1981, informed the parties that his understanding of the law was that attorney's fees were based on compensation exclusive of medical bills. On October 19, 1981, the referee entered an amended order setting the attorney's fees at $85.20. The Board affirmed and this appeal followed.

Section 440 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. ยง 996 (Supp. 1984-85), provides:

In any contested case where the insurer has contested liability in whole or in part, the employe . . . 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's fee . . . Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established. . . .

In Workmen's Compensation Appeal Board v. Leuschen, 21 Pa. Commonwealth Ct. 39, 42, 342 A.2d ...


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