Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Hazel Rettinger v. American Can Company, No. A-89898.
Richard H. Wix, with him, Michael L. Rozman, Wix, Wenger & Weidner, for petitioner.
James F. Carl, Metzger, Wickersham, Knauss & Erb, for respondent, American Can Company.
Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 103 Pa. Commw. Page 596]
In this workmen's compensation case Hazel Rettinger, Claimant, appeals here an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision. The referee's decision reduced her benefits from total to partial disability and denied her request for attorney's fees and penalties. We reverse in part and affirm in part.
This case has had a long and embattled course of litigation. There have been three decisions by two referees and three reviews and orders from the Board. To understand the complex issues as to burden of proof involved here, it is necessary to review the history of the case.
The case was instituted on February 7, 1979, when Claimant filed a Claim Petition alleging total disability
[ 103 Pa. Commw. Page 597]
resulting from a degenerative arthritic condition, De Quiveran's Syndrome, in both her hands. The late Referee Noonan issued a decision on June 16, 1981, awarding her total disability benefits commencing on February 13, 1978. Referee Noonan also found Claimant's weekly wage to be $216.46 and concluded attorney's fees of 20% be paid out of the compensation due Claimant. Claimant appealed Referee Noonan's decision to the Board contending he erred in calculating her weekly wage and denying her request to have the Employer, American Can Company, or its insurer, pay her attorney's fees. The Employer filed no appeal but filed a modification petition during the pendency of Claimant's appeal to the Board. The Board remanded the case to the referee to determine the reasonableness of the Employer's contest. On remand, Referee Deeley, substituting for the deceased Referee Noonan, decided both the reasonableness of the Employer's contest as well as the modification petition. Referee Deeley decided there was to be no change in compensation since "Claimant successfully established that there were no jobs available to her at this time" and found the Employer's contest reasonable. The Employer appealed that decision to the Board. The Board, in its second decision, dated June 21, 1984, found that the Employer had met its burden of showing the availability to Claimant of suitable work and remanded the case to the referee for a recomputation of benefits based upon its finding that Claimant was now only partially disabled. An appeal of that order to this Court was quashed on July 31, 1984.*fn1
On March 18, 1985, Referee Deeley filed his second decision, the third by a referee in this case, wherein he
[ 103 Pa. Commw. Page 598]
found Claimant's wage rate to be $324.25 per week, the compensation rate being $216.46; finding work was available to Claimant paying $3.25 per hour for a twenty hour week, or $67.00 per week; that the Employer's contest was reasonable based on the question of notice; and concluded penalties would not be appropriate in this case. Referee Deeley granted the Employer's modification petition as of March 23, 1982, reducing Claimant's compensation to $171.50 per week, reflecting the reduction by $67.00 from the average weekly wage ...