Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Anita Louise Fry v. Mercy Catholic Medical Center, No. A-91119.
Samuel H. Pond, for petitioner.
James C. O'Connor, Barnard and Gannon, for respondent.
Judges Doyle, Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Senior Judge Kalish dissents.
[ 114 Pa. Commw. Page 219]
Mercy Catholic Medical Center (Petitioner) appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Anita Louise Fry (Claimant). We affirm.
[ 114 Pa. Commw. Page 220]
Claimant was employed by Petitioner as a physical therapist assistant. On November 1, 1979, Claimant fell and suffered a back injury during the course of her employment. Petitioner paid workmen's compensation benefits to Claimant until October 15, 1981.*fn1 In October of 1981, Claimant moved to Florida where she obtained employment as a secretary. In February of 1983, Claimant was hospitalized because of neck and head pain. On May 11, 1983, Claimant filed a petition to reinstate benefits and alleged that as of February 21, 1983, she became totally disabled again as a result of the injury suffered during her employment with Petitioner.
Petitioner contested the petition to reinstate benefits. After hearings and depositions, the referee entered an order reinstating benefits as of February 23, 1983. In addition, the referee found that Petitioner did not establish facts sufficient to prove a reasonable basis for contest and awarded counsel fees to Claimant. On October 21, 1986, after reviewing the decision of the referee, the Board affirmed.
On appeal, Petitioner presents only one issue for our review. Petitioner argues that the referee erred in awarding counsel fees to Claimant and asserts that there was a reasonable basis for contesting the reinstatement of benefits. Petitioner contends that it presented medical evidence to establish that Claimant was not totally disabled, but could perform some work.*fn2 Claimant now requests reasonable counsel fees and delay damages at the rate of six (6%) percent per annum in addition to
[ 114 Pa. Commw. Page 221]
the counsel fees awarded as a result of the proceedings before the referee and Board.*fn3
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. Bailey v. Workmen's Compensation Appeal Board (Lawton Feed & Supply, Inc.), 105 Pa. Commonwealth Ct. 106, 523 A.2d 415 (1987). Where the Board takes no additional evidence, the ultimate fact-finder is the referee, whose factual determinations, when supported by substantial evidence, must be accepted. ...