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JOSEPH W. DAUGHERTY v. WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORP.) (05/08/86)

decided: May 8, 1986.

JOSEPH W. DAUGHERTY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (JONES & LAUGHLIN STEEL CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Joseph W. Daugherty v. Jones & Laughlin Steel Corp., No. A-83842.

COUNSEL

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for petitioner.

Michael D. Sherman, with him, Leonard Kane and Roy F. Walters, Jr., Fried, Kane, Walters & Zuschlag, for respondent, Jones and Laughlin Steel Corporation.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 97 Pa. Commw. Page 143]

Joseph W. Daugherty (Claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision ordering him to pay his attorney fees. We affirm.

Claimant was employed by Jones & Laughlin Steel Corporation (Employer). On August 3, 1976, Claimant suffered an injury to his back for which he received total disability payments pursuant to a notice of compensation payable. Claimant returned to work on January 3, 1977 and was then paid partial disability payments until August 1, 1977. Claimant's back condition became progressively more severe; consequently, on September 1, 1977, Claimant was forced to terminate his work.

[ 97 Pa. Commw. Page 144]

Shortly thereafter, Claimant filed a review petition alleging that he was totally disabled as a result of his injury of August 3, 1976.

Hearings were held before a referee who ruled that Claimant had become totally disabled as of September 1, 1977 and was entitled to a reinstatement of benefits. The referee also concluded that Employer's contest had been without merit and sua sponte ordered Employer to pay Claimant's attorney fees. Employer appealed to the Board raising only the issue of the award of counsel fees. The Board held that the referee erred in awarding counsel fees sua sponte and remanded the case to the referee for further findings as to the amount Claimant should pay his attorney. The referee issued a second decision omitting his original finding of fact that there was no reasonable basis for contesting liability*fn1 and ordering Claimant to pay his own counsel fees in an amount of 20% of the award, a figure agreed upon by Claimant and his attorney. The Board affirmed the referee's decision and the instant appeal followed.

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 ...


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