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DICK CORPORATION AND CNA INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (HILL) (09/18/87)

decided: September 18, 1987.

DICK CORPORATION AND CNA INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (HILL), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Hill v. Dick Corporation, No. A-87285.

COUNSEL

Charles G. Brown, Dickie, McCamey & Chilcote, P.C., for petitioners.

Bruce E. Woodske, for respondent.

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

Author: Barry

[ 109 Pa. Commw. Page 428]

The Dick Corporation (employer) and its worker's compensation insurance carrier, CNA Insurance Company, appeal an order of the Workmen's Compensation Appeal Board which affirmed a decision of a referee which awarded attorney's fees to the claimant, John Hill.

Claimant was employed by The Dick Corporation for over one year as a construction laborer. On March 20, 1983, the claimant was told while at work that he was being fired effective at the end of the shift. Before the shift ended, while carrying a ladder, claimant tripped and felt a sharp pain in his back and legs. Another worker, Archie Fetty, was nearby and, although he did not see the accident, he heard the ladder as it hit the ground. Fetty went immediately to the area and found claimant under the ladder with his legs crossed and twisted.

The claimant filed a claim petition. He presented by way of deposition the testimony of Dr. Michael Zernich,

[ 109 Pa. Commw. Page 429]

    an orthopedic surgeon, and Dr. John Gump, a chiropractor, who both opined that claimant was totally disabled as a result of the accident because of lower back strain. The employer presented no medical evidence; in fact, the employer's only testimony was that of two individuals who testified that the claimant had been discharged effective the end of the shift during which he was injured. The employer's entire defense was based on a theory that the claimant staged the accident to collect benefits in retaliation for his termination.

The referee, finding credible claimant's testimony concerning the accident and the doctors' testimony that claimant was disabled, awarded benefits and attorney's fees. The appellants appealed only the question of the attorney's fees. The Board affirmed and this appeal followed.

Section 440 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. ยง 996, allows the referee to award a claimant attorney's fees when the employer has failed to present a reasonable contest on the question of the employer's obligation to pay benefits. Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law was committed or whether the necessary factual findings are supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Furthermore, the reasonableness of an employer's contest is a question of law, subject to our review. Cleaver v. Workmen's Compensation Appeal Board (Wiley/Continental Food Service), 72 Pa. Commonwealth Ct. 487, 456 A.2d 1162 (1983).

Appellants rely upon Jodon v. Workmen's Compensation Appeal Board (Corning Glass Works), 54 Pa. Commonwealth Ct. 246, ...


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