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JOHN T. ALLUMS v. WORKMEN'S COMPENSATION APPEAL BOARD (WESTINGHOUSE ELECTRIC CORP.) (10/27/87)

decided: October 27, 1987.

JOHN T. ALLUMS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WESTINGHOUSE ELECTRIC CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of John T. Allums v. Westinghouse Electric Corp., No. A-87701 and Misc. No. 4284.

COUNSEL

Paul Auerbach, for petitioner.

Michael T. Grimes, Deasey, Scanlan & Bender, Ltd., for respondent, Westinghouse Electric Corp.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Concurring Opinion by Senior Judge Kalish.

Author: Doyle

[ 110 Pa. Commw. Page 445]

This is an appeal by John T. Allums (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) that denied his petition for reconsideration which petition sought additional counsel fees pursuant to Section 440 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. ยง 996, for work done by Claimant's attorney in defending Claimant against an allegedly frivolous appeal by Westinghouse Electric Corp. (Employer).

Claimant suffered a compensable injury on January 14, 1977.*fn2 In 1982, Employer filed a petition to modify benefits alleging a decrease in Claimant's disability. Claimant hired an attorney to defend against this petition. A few days prior to the referee's hearing, Employer withdrew its modification petition. Claimant's attorney thereupon requested a hearing solely on the issue of attorney

[ 110 Pa. Commw. Page 446]

    fees under Section 440 of the Act.*fn3 The hearing resulted in a referee's determination that Claimant's attorney was entitled to legal fees of $1,000.00 "to be paid by [Employer] because of the filing of the Modification Petition and then withdrawing it."

Employer appealed this order to the Board. Claimant cross-appealed on the basis that the referee erred in inadvertently omitting from his award an eighteen dollar fee for the cost of transcribing the testimony from the hearing. On his appeal form, Claimant also requested that additional legal fees be assessed against Employer for the work Claimant's attorney was performing in defending Claimant's case against the Employer's "meritless appeal" from the award of counsel fees. The Board ordered a remand for purposes of correcting the eighteen dollar transcript bill omission (later paid upon stipulation without hearing) but denied Claimant's request for additional legal fees, although it did uphold the $1,000.00 fee assessment granted by the referee for the work done by Claimant's attorney in first preparing to defend the withdrawn modification petition.*fn4

[ 110 Pa. Commw. Page 447]

Claimant petitioned the Board for reconsideration of the issue of the denial of additional legal fees for the work done by his attorney in defending him on appeal, which petition the Board ultimately denied on January 17, 1986. Specifically, the Board held, "Claimant's counsel is entitled to have the defendant pay his fee under Section 440 of the Act which was ordered by this Board in our prior decision. We will not allow any additional counsel fees to be paid by the defendant in this case." Because there was no cross-appeal by Employer, we need only decide whether the Board committed error in refusing Claimant's request for additional legal fees. The $1,000 in counsel fees awarded to Claimant for an unreasonable contest under Section 440 of the Act is not an issue in this appeal.

Claimant, of course, asserts that the additional counsel fees are proper and should have been imposed. Employer disagrees and cites Weidner v. Workmen's Compensation Appeal Board, 497 Pa. 516, 442 A.2d 242 (1982) in support of its position.*fn5 In Weidner (Pa.), a referee failed to make an award for counsel fees in his initial decision, denying the employer's petition to terminate, but did order a suspension of benefits. The Claimant appealed specifically the issue of such fees and our Court in Weidner v. Workmen's Compensation Appeal Board, 16 ...


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