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ROBERT A. WHITE v. WORKMEN'S COMPENSATION APPEAL BOARD (GATEWAY COAL COMPANY AND HARTFORD) (01/30/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 30, 1987.

ROBERT A. WHITE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GATEWAY COAL COMPANY AND THE HARTFORD), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert A. White v. Gateway Coal Company, No. A-86744.

COUNSEL

Gary D. Mongahan, Davis & Davis, for petitioner.

Noble R. Zuschlag, Fried, Kane, Walters & Zuschlag, for respondents.

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

Author: Blatt

[ 103 Pa. Commw. Page 398]

On August 8, 1983, a worker's compensation referee awarded temporary total compensation to Robert A. White (petitioner) for a work-related ankle injury, but denied his request for an award of attorney's fees against his employer, Gateway Coal Company, and also, reduced,

[ 103 Pa. Commw. Page 399]

Appeal Board (Cimoch), 88 Pa. Commonwealth Ct. 64, 488 A.2d 648 (1985). And, of course, whether or not an employer's contest has a reasonable basis is a question of law. Id. Furthermore, in determining the reasonableness of an employer's contest, the primary question is whether or not the contest was brought to resolve a genuinely disputed issue or merely for purposes of harassment. Id.

The petitioner concedes that, even where, as here, the employer produces no contradictory evidence as to injury or disability, the employer may, nonetheless, establish a reasonable basis for contesting a claim solely by evidence adduced on cross-examination. Cavanaugh v. Workmen's Compensation Appeal Board, 50 Pa. Commonwealth Ct. 495, 413 A.2d 442 (1980). He argues, however, that there is nothing in this record which can be construed to establish the requisite reasonable basis. We disagree.

As the employer's brief correctly observes, its physician, who had originally treated the petitioner, released him to return to work approximately two weeks after the occurrence of the injury. We believe that this fact presents a circumstance which could reasonably motivate an employer to contest a claim in order to ascertain the proper period of disability. We must conclude, therefore, that the denial of the petitioner's request for the assessment of his attorney's fees against the employer was proper.

The other issue raised by the petitioner is the propriety of the referee's sua sponte reduction of the

[ 103 Pa. Commw. Page 401]

    chiropractic fees which the petitioner sought from the employer.

Neither party has cited us to any direct precedent on this question, nor has our own research revealed any. Recently, however, we affirmed a Board order which reversed a referee's sua sponte award of attorney's fees. Daugherty v. Workmen's Compensation Appeal Board (Jones and Laughlin Steel Corp.), 97 Pa. Commonwealth Ct. 142, 510 A.2d 147 (1986). Inasmuch as Section 440 does not expressly refer to petitions for the assessment of attorney's fees*fn4 and the section of the Act relating to medical fee challenges, Section 306(f)(2)(ii) does explicitly provide employers with the right to petition the compensation authorities to determine the reasonableness of the medical fee,*fn5 we believe that fairness demands that employers objecting to medical fee reimbursement requests from claimants be placed on equal footing with claimants seeking reimbursement for attorney's fees from their employers. We conclude, therefore, that an employer petition challenging the medical fees is necessary before a referee may address that issue.

In the matter sub judice, the employer filed no such petition, never challenged the reasonableness of the chiropractic bills submitted by the petitioner, and did not object when those bills were introduced into evidence. Accordingly, we conclude that it was error for the referee, on his own initiative to reduce the medical fee

[ 103 Pa. Commw. Page 402]

    award and that that portion of the Board's order affirming the reduction must be reversed.

We will affirm, therefore, the order of the Board, insofar as it denies the petitioner's request for the assessment of his attorney's fees against the employer, and we will reverse, insofar as the Board's order permitted the reduction of the chiropractic fees.

Order

And Now, this 30th day of January, 1987, the order of the Workmen's Compensation Appeal Board in the above-captioned matter, insofar as it denies the petitioner's request for the assessment of his attorney's fees against the employer, is affirmed. And, insofar as it affirms the referee's sua sponte reduction of the petitioner's chiropractic fees, the Board's order is reversed and the full amount of such chiropractic fees shall be paid by the employer.

Disposition

Affirmed in part and reversed in part.


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