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ALLIED CHEMICAL COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (WITKOWSKI) (04/06/88)

decided: April 6, 1988.

ALLIED CHEMICAL COMPANY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WITKOWSKI), RESPONDENT. ADAM WITKOWSKI, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (ALLIED CHEMICAL COMPANY AND TRAVELERS INSURANCE COMPANY), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal Board, in the case of Adam Witkowski v. Allied Chemical Company, No. A-91182.

COUNSEL

Stephen J. Harlan, Swartz, Campbell & Detweiler, for petitioner, Allied Chemical Company.

Robert J. Murphy, Murphy, Murphy & Murphy, P.C., for respondent, Adam Witkowski.

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

Author: Palladino

[ 115 Pa. Commw. Page 253]

Allied Chemical Company (Employer) and Adam Witkowski (Claimant) appeal from the Workmen's Compensation Appeal Board's (Board) affirmance of a referee's order which, inter alia, awarded counsel fees to Claimant for Employer's unreasonable contest and awarded Employer a credit for payments it made to Claimant which were not pursuant to a Notice of Compensation Payable.

Claimant filed a claim petition on April 28, 1980, alleging he had become totally disabled as of February 27, 1980 because of occupational lung disease.*fn1 Employer answered the claim petition on May 13, 1980, demanding proof of all Claimant's allegations. Four hearings were held, following which, on January 21, 1986, the referee issued his decision.

The referee awarded total disability benefits to Claimant finding that Claimant had contracted occupational lung disease from his 25 years of employment with Employer. Claimant's total disability is not disputed on appeal. However, the referee also awarded counsel fees as follows:

12. From February 27, 1980, when claimant became disabled, to February 7, 1983, when defendant commenced payments of partial disability compensation to claimant, the defendant's contest of this claim petition was unreasonable because defendant was aware of claimant's work-related exposures and resulting disability. However, after February 7, 1983, defendant's contest was reasonable because it was relying on Dr. Atkinson's opinion that claimant was able to perform light and sedentary work.

[ 115 Pa. Commw. Page 25413]

. The claim for unreasonable contest counsel fees made by claimant is hereby assessed at 20% of the partial disability compensation paid from February 27, 1980 to February 7, 1983, which sum for counsel fee [sic] shall be paid by defendant to claimant's counsel in addition to any partial disability compensation paid during this period to the claimant.

The referee also awarded Employer a credit for payments Employer had made to Claimant*fn2 based on its acceptance of the fact that Claimant was at least partially disabled.

On February 10, 1986, Employer appealed the referee's decision to the Board. On February 24, 1986, Claimant appealed to the Board. Employer motioned to quash Claimant's appeal to the Board as untimely because it was not within the 20 day period provided for in Section 423 of The Pennsylvania Workmen's Compensation Act*fn3 (Act). Review of the record discloses no decision from the Board on this motion. However, the ...


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