Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Patricia E. Richmond v. Oxford Chemical, Inc., No. A-90251.
Morton Gordesky, for petitioner.
David L. Allebach, Jr., Reynier, Crocker, Allebach & Reber, P.C., for respondent, Oxford Chemical, Inc.
President Judge Crumlish, Jr., Judge Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.
[ 110 Pa. Commw. Page 22]
Patricia Richmond, the claimant, appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed the decision of a referee awarding the claimant benefits for partial disability.
Claimant is employed as a sales representative by Oxford Chemical, Inc. (employer). In May of 1981, while in the course of her employment, she was injured in an automobile accident. She was paid total disability benefits pursuant to a notice of compensation payable. In November of that same year, the claimant signed a final receipt and returned to work.
In August of 1982, the claimant filed a petition to set aside the final receipt. Following a hearing, the referee found that claimant had suffered periodic recurrences of the disabling injuries. The referee further found that the claimant had been unable to work from April 1, 1982 to May 18, 1982, inclusive; from January 6, 1983 to February 8, 1983, inclusive; from March 31, 1983 to April 14, 1983, inclusive; August 3, 1983 to August 17, 1983, inclusive and from December 12, 1983 to January 17, 1984, inclusive. The referee also found that the claimant was able to work only half days from November 9, 1981 to December 8, 1981, inclusive and from August 19, 1982 to September 10, 1982, inclusive. Claimant, who was paid strictly on a commission basis for sales made, sometimes did not receive her commission
[ 110 Pa. Commw. Page 23]
checks until one or two months after the sale. As a result, the claimant received commission checks during the periods when she was unable to work and, because of this fact, the referee ruled that her disability was partial, as opposed to total, and awarded reduced benefits based on the finding of partial disability. The referee also found that the employer had presented a reasonable contest and was, therefore, not responsible for the payment of claimant's attorneys' fees. The claimant appealed to the Board which affirmed. This appeal followed.
On this appeal, the claimant argues that the Board erred in affirming the referee's decision concerning both the reasonableness of the employer's contest and the degree of disability. For the reasons that follow, we will affirm on the former and reverse on the latter.
Section 440 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Act of February 8, 1972, P.L. 25, 77 P.S. § 996 (Supp. 1987), permits the award of attorneys' fees and other costs where the employer fails to present a reasonable contest on the question of the employer's liability. Whether an employer has presented a reasonable contest is a question of law. Ehrhart v. Workmen's Compensation Appeal Board (Pennsylvania Liquor Control Board), 78 Pa. Commonwealth Ct. 123, 466 A.2d 1139 (1983). In this case, a number of the claimant's complaints of pain in the lower back and leg were based strictly on subjective complaints of pain. Furthermore, claimant's medical expert testified on cross-examination that all individuals suffer from some degree of degenerative disc disease, unrelated to trauma. While the ...