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.
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.
[ 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 ...