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ROBERT I. KERR v. WORKMEN'S COMPENSATION APPEAL BOARD (CAMPBELL COMPANY AND COMMONWEALTH PENNSYLVANIA) (07/27/87)

decided: July 27, 1987.

ROBERT I. KERR, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CAMPBELL COMPANY AND COMMONWEALTH OF PENNSYLVANIA), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert I. Kerr v. Campbell Company, No. A-90637.

COUNSEL

John R. Seltzer, Mansell & Jamison, for petitioner.

Richard E. Flannery, Balph, Nicolls, Mitsos, Flannery & Motto, for respondent.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 108 Pa. Commw. Page 31]

Robert I. Kerr (Claimant) appeals from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying Claimant's request for penalties pursuant to The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยงยง 1-1601.1. We affirm.

The pertinent facts are as follows. Claimant was employed by Campbell Company (Employer). On August 23, 1979, Claimant filed a petition for benefits alleging a work-related injury on April 15, 1977. The referee awarded benefits at the rate of $199.00 per week. Employer timely appealed the referee's award to the Board and simultaneously requested that a supersedeas pending disposition of the appeal be granted. On December 2, 1980, the Board granted Employer's request for supersedeas as to medical costs but denied the request for supersedeas as to 80% of Claimant's compensation or

[ 108 Pa. Commw. Page 32]

$187.00 per week. On June 30, 1981, the referee's decision was affirmed by the Board. Employer, on July 27, 1981, timely appealed to this Court the Board's order awarding benefits and again requested from the Board a supersedeas pending appeal. On August 18, 1981, the Board granted Employer's request for supersedeas as to attorney fees, costs, and medical expenses but denied the request for supersedeas as to 80% of Claimant's compensation. On May 13, 1983, the Commonwealth Court at Campbell Co. v. Workmen's Compensation Appeal Board (Kerr), 74 Pa. Commonwealth Ct. 305, 459 A.2d 904 (1983) affirmed the decision of the Board awarding benefits to Claimant. No further appeal was taken by Employer.

However, prior to the Commonwealth Court's final disposition of Employer's appeal, Claimant on November 2, 1981 filed a petition requesting that Employer be required to pay penalties in the total amount of $18,303.89.*fn1 In his petition, Claimant contended that due to Employer's actions in making late payments or inappropriate payments, he was forced to sell various items of personal property in order to support and maintain his household and as a result suffered a loss of $18,303.89. Additionally, Claimant alleged that due to Employer's refusal to pay his work-related medical expenses, he was sued by St. Elizabeth's Hospital of Youngstown, Ohio and was required to hire an attorney to defend this lawsuit.*fn2 Lastly, Claimant requested interest in the amount of $2,445.27 as of July 9, 1984 for the delay in payments caused by Employer.

[ 108 Pa. Commw. Page 33]

The referee denied Claimant's request for personal losses of $18,303.89 and Claimant's request for attorney fees. The referee did grant Claimant's request for interest as of July 9, 1984 in the amount of $2,445.27, with the exception that Employer was entitled to a credit for payments made as of October 1, 1984 in the amount of $1,962.01. This left a balance with respect to interest of $483.26. However, the referee in his order inadvertently failed to credit Employer pursuant to his findings of fact for the $1,962.01 in payments previously paid and awarded Claimant interest and late compensation payments in the amount of $2,445.27 plus a penalty of 10%. The Board affirmed the referee's order with the exception of making the correction, pursuant to the referee's findings of fact, that Employer was obligated to only pay interest in the amount of $483.26. Hence, this appeal by Claimant.

The questions presented for our consideration on appeal are: (1) whether the referee erred in denying Claimant reimbursement for his personal losses in the amount of $18,303.89; (2) whether the referee erred in denying Claimant reimbursement for attorney fees incurred as the result of Claimant's defense of a civil suit against him by a medical service provider; and (3) whether or not the ...


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