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LOUIS POLIGHT v. WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORPORATION) (11/06/85)

decided: November 6, 1985.

LOUIS POLIGHT, PETITIONER
v.
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.

COUNSEL

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.

Author: 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. ยง 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 ...


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