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BARBARA MCCONNELL v. WORKMEN'S COMPENSATION APPEAL BOARD (WESTERN CENTER) (12/08/87)

decided: December 8, 1987.

BARBARA MCCONNELL, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WESTERN CENTER), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Barbara McConnell v. Western Center, No. A-89779.

COUNSEL

John D. Hendricks, for petitioner.

Jerome P. Grossi, Assistant Counsel, for respondent, State Workmen's Insurance Fund.

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

Author: Kalish

[ 111 Pa. Commw. Page 522]

Petitioner, Barbara McConnell, seeks review of a decision of the Workmen's Compensation Appeal Board (Board) which reversed that portion of a referee's decision to award attorney's fees to petitioner upon concluding there was no reasonable basis to contest the claim. There is no appeal involving the basic award of compensation. We affirm the Board.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Section 440 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996, provides:

Where the insurer has contested liability . . . the employee . . . in whose favor the matter at

[ 111 Pa. Commw. Page 523]

    issue has been finally determined shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fees . . . provided that cost for attorney fees may be excluded when a reasonable basis for the contest has been established.

The burden is on the employer to present sufficient evidence to establish a reasonable basis for the contest. Edmond v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 458, 402 A.2d 715 (1979).

The issue is not the credibility of the witnesses as determined by the fact finder, but whether the employer had a reasonable basis for the contest. Thus, on review we look at the totality of the circumstances since the reasonableness of a contest ...


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