decided: November 6, 1985.
LOUIS POLIGHT, PETITIONER
WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORPORATION), RESPONDENTS
Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Louis Polight v. Jones & Laughlin Steel Corporation, No. A-85154.
John W. McTiernan, McArdle, Caroselli, Spagnolli & Beachler, for petitioner.
Leonard P. Kane, Jr., for respondents, Jones & Laughlin Steel Corporation.
Judges Rogers and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.
[ 92 Pa. Commw. Page 583]
Louis Polight (Claimant) appeals from a denial of attorney's fees by the Workmen's Compensation Appeal Board (Board) which reversed a referee's award of attorney's fees because it concluded that the contest of the claim by Jones & Laughlin Steel Corporation (Employer) was reasonable. Compensability for the injury itself is not at issue in this appeal.
Claimant worked as a shearman for Employer. On April 23, 1982, Claimant tripped over a hose on Employer's premises and fell to the ground, injuring his back. Claimant filed a claim petition on September 7, 1982, requesting counsel fees. Although Employer filed an answer to the petition specifically denying that Claimant sustained an injury while in the course of his employment, Employer admitted that Claimant reported to the plant dispensary but contested the date.*fn1 Employer also alleged that Claimant was not
[ 92 Pa. Commw. Page 584]
entitled to receive attorney fees because the accident was unwitnessed*fn2 and Claimant had had a pre-existing non-compensable back injury.
At the start of the hearing before the referee, counsel for Claimant stated that the only issue before the referee was the issue of attorney's fees. After the hearing, the referee awarded Claimant attorney's fees because he felt that Employer did not have a reasonable basis to contest the claim petition. Employer appealed to the Board, which reversed the award of attorney's fees.
Section 440 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996, added by Section 3 of the Act of February 8, 1972, P.L. 25 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 . . . .
Whether there is a reasonable basis for the contest is a conclusion of law subject to review by this Court. See Cleaver v. Workmen's Compensation Appeal Board (Wiley/Continental Food Service), 72 Pa. Commonwealth Ct. 487, 456 A.2d 1162 (1983). "The primary question in determining the reasonableness
[ 92 Pa. Commw. Page 585]
of an employer's contest is whether the contest was brought to resolve a genuinely disputed issue or merely for purposes of harassment." Ehrhart v. Workmen's Compensation Appeal Board (Liquor Control Board), 78 Pa. Commonwealth Ct. 123, 125, 466 A.2d 1139, 1140 (1983).
The Board, in reversing the referee's award of counsel fees, stated that:
Upon hearing claimant's testimony, [Employer's] attorney admitted liability and a notice of compensation payable was entered into subsequently whereby the claimant received compensation for total disability. This was done after [Employer's] counsel had an opportunity to cross-examine the claimant. There were no other witnesses produced by the claimant. Therefore, claimant's credibility was clearly an issue in this case and we therefore cannot hold that the contest was unreasonable.
It is Claimant's position that inasmuch as Employer admitted liability prior to receiving Claimant's testimony that Employer did not adduce any evidence which would establish the reasonableness of Employer's contest. After a careful review of the testimony, we agree that the statement was made prior to receiving such testimony and not after as was indicated by the Board. Employer did not admit liability after hearing Claimant's testimony, as in McGowan v. Workmen's Compensation Appeal Board, 60 Pa. Commonwealth Ct. 508, 432 A.2d 272 (1981). Employer's acquiescence on the issue of its liability before the hearing established Claimant's status as the prevailing party. Boothman v. Workmen's Compensation Appeal Board (City of Philadelphia), 74 Pa. Commonwealth Ct. 234, 459 A.2d 1317 (1983). Claimant's credibility was therefore not an issue in this case.
[ 92 Pa. Commw. Page 586]
Employer contends that it had reason to believe that Claimant's injury was not work-related but was due to a prior non-work injury. However, Employer did not present any evidence at the hearing to rebut Claimant's medical evidence, which included Claimant's testimony, his doctor's report and hospital records. Employer here clearly did not carry his burden in proving it had a reasonable basis for the contest. Compare M. A. Bruder & Son, Inc. v. Workmen's Compensation Appeal Board (Harvey), 86 Pa. Commonwealth Ct. 353, 485 A.2d 93 (1984) (employer's medical deposition provided a reasonable basis for the contest). Therefore, we will reverse the Board's order denying Claimant counsel fees.
The order of the Workmen's Compensation Appeal Board, dated June 28, 1984, at No. A-85154, is reversed.