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NORTH PHILADELPHIA AVIATION CENTER AND NATIONAL UNION FIRE INSURANCE COMPANY PITTSBURGH v. WORKMEN'S COMPENSATION APPEAL BOARD (REGAN) (12/12/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 12, 1988.

NORTH PHILADELPHIA AVIATION CENTER AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (REGAN), RESPONDENTS. THERESA REGAN, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (NORTH PHILADELPHIA AVIATION CENTER AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH), RESPONDENTS

Appeals from the Orders of the Workmen's Compensation Appeal Board, in the cases of North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh v. Workmen's Compensation Appeal Board (Regan); Theresa Regan v. Workmen's Compensation Appeal Board (North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh); North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh v. Workmen's Compensation Appeal Board (Regan), and Theresa Regan v. Workmen's Compensation Appeal Board (North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh).

COUNSEL

Joyce J. Sweinberg, for petitioner, Theresa Regan.

A. James Johnston, Post & Schell, P.C., for respondent, North Philadelphia Aviation Center and National Union Fire Insurance Company of Pittsburgh.

Judges Colins and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 121 Pa. Commw. Page 635]

This matter arises from a petition and cross-petition for review taken by North Philadelphia Aviation Center (Employer) and its insurance carrier, National Union Fire Insurance Company of Pittsburgh, and Theresa Regan (Claimant), respectively, from the final amended order*fn1 of the Workmen's Compensation Appeal Board (Board) which reversed the referee's finding that Employer's contest was unreasonable, and directed that all attorney's fees be paid from Claimant's compensation pursuant to The Workmen's Compensation Act (Act).*fn2 The Board affirmed the referee in all other respects. The Board's final amended order is affirmed.

Claimant, a bookkeeper/secretary/receptionist for Employer, sustained work-related injuries to her head, neck, shoulders, and back on September 15, 1983 when the office trailer in which she worked was struck by a delivery van. Claimant received benefits pursuant to a notice of compensation payable until she executed a supplemental agreement that suspended benefits effective November 14, 1983. Shortly thereafter, Claimant was discharged and received unemployment compensation benefits from November 1983 to May 1984 when she acquired full-time employment as a mortgage clerk. Claimant worked until July 1984 at which time she ceased working on the advice of her treating physician. On August 30, 1984, Claimant filed a petition for reinstatement

[ 121 Pa. Commw. Page 636]

    of compensation, subsequently amended to a petition to review the supplemental agreement, alleging recurrence of total disability as of July 11, 1984. Claimant returned to her job as mortgage clerk on a part-time basis from December 1984 until January 1985 when her treating physician recommended that she undergo anterior cervical fusion. Claimant has been unable to resume any type of employment due to post-operative recuperation.

After several hearings, the referee granted Claimant's petition to review the supplemental agreement on the basis that Claimant executed the supplemental agreement under a mistake of fact. The referee also directed Employer to pay Claimant total disability indefinitely retroactive to November 14, 1983, plus interest at the rate of ten percent on all deferred compensation less a partial credit for income earned by Claimant; reasonable medical expenses, plus interest at the rate of ten percent on unpaid medical bills; Claimant's litigation expenses; a twenty percent penalty on outstanding medical bills; attorney's fees in the amount of twenty percent of all compensation payable pursuant to Section 440 of the Act, 77 P.S. § 996, for an unreasonable contest; and attorney's fees in the amount of twenty percent of the outstanding medical expenses. Employer appealed to the Board, which found Employer's contest to be reasonable, and accordingly, reversed the referee's decision insofar as it awarded attorney's fees of twenty percent of the outstanding medical expenses, but affirmed in all other respects. Employer thereafter petitioned this Court for review of the Board's order and Claimant cross-petitioned, both petitions being consolidated by order of this Court. In the interim, the Board issued an amended order dated October 9, 1987 directing that all attorney's fees be paid out of Claimant's compensation, and again, affirmed the referee's decision in

[ 121 Pa. Commw. Page 637]

    all other respects. Employer petitioned this Court for review of the Board's amended order and Claimant cross-petitioned.*fn3 Both petitions were consolidated by order of this Court.*fn4

Issues presented for review by Employer are whether substantial evidence supports the referee's finding that Claimant signed the subject supplemental agreement under a mistake of fact; and whether the referee erred as a matter of law in finding that Claimant was presumed to be totally disabled in view of the referee's failure to acknowledge or address Employer's evidence of job availability. Claimant, on the other hand, raises the issue as to whether Employer engaged in an unreasonable contest.

Employer initially challenges the referee's findings and conclusions pertaining to Claimant's mistaken belief that she was able to return to work as not being supported by substantial evidence. Employer first argues that there was no mistake of fact at the time the supplemental agreement was executed and it was not until July 11, 1984 that Claimant realized she would be unable to continue working. The referee, however, based upon competent substantial evidence of record, found that Claimant was incapable of any employment during the time periods of November 14, 1983 through May 15, 1984; July 11, 1984 through December 3, 1984; and

[ 121 Pa. Commw. Page 638]

January 24, 1985 through the present time. Findings of Fact Nos. 10, 12, 14; Conclusions of Law Nos. 6, 11. Credibility determinations and resolution of conflicting testimony are for the referee. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977). Accordingly, where, as here, the referee's findings are supported by substantial evidence and the Board takes no additional evidence, the referee's findings must be accepted. Sokol v. Workmen's Compensation Appeal Board (State Regional Correctional Facility), 91 Pa. Commonwealth Ct. 396, 497 A.2d 670 (1985).

Employer alternatively argues that Claimant's mistaken belief at the time she executed the supplemental agreement was not the type of mistake of fact justifying a modification or setting aside of the supplemental agreement, and therefore, Claimant failed to sustain her burden of proving that the supplemental agreement was incorrect in any material respect.*fn5 Employer relies primarily upon Augustine v. Evert Lumber Co., 134 Pa. Superior Ct. 167, 3 A.2d 284 (1938) in support thereof. In Augustine, claimant, as here, filed a petition for review of a supplemental agreement pursuant to Section 413 of the Act, 77 P.S. § 772, alleging that the supplemental agreement was premised upon a mistake and that his condition was gradually worsening due to his work-related injury. The Superior Court stated that claimant's mistaken belief as to his ability to work when the supplemental agreement was executed is not the type of mistake contemplated by Section 413.

[ 121 Pa. Commw. Page 639]

Claimant, however, also alleged recurrence of total disability in her original petition which could justify reinstatement of compensation if sufficiently established by Claimant. It is beyond refute that the form of the petition is not determinative where facts warrant relief. If Claimant is entitled to relief under any section of the Act, the petition will be deemed to have been filed pursuant to that section. Pittsburgh Press Co. v. Workmen's Compensation Appeal Board (Pecora), 82 Pa. Commonwealth Ct. 538, 475 A.2d 972 (1984). Moreover, where there has been a suspension agreement, as here, claimant need only establish continuing disability and recurrence of loss of earnings. Palmiere v. Workmen's Compensation Appeal Board (East End Trucking), 91 Pa. Commonwealth Ct. 137, 496 A.2d 918 (1985).

Based upon competent substantial evidence of record, the referee found that claimant has been totally disabled from working in any capacity since November 14, 1983, except for the two unsuccessful work attempts totaling 17 weeks; and that the progressive deterioration of Claimant's condition since the work-related incident necessitated surgical intervention. Findings of Fact Nos. 4-8, 10-14, 20; Conclusions of Law Nos. 6, 11. Accordingly, the referee committed no error in granting Claimant's petition on the basis of substantial evidence of record.

Employer further argues that the referee's finding of Claimant's presumed total disability constitutes an error of law in light of the referee's failure to acknowledge or address Employer's evidence of job availability. Contested Finding of Fact No. 16 provides that:

The Defendant and/or its insurance carrier has presented no evidence or testimony of other employment which claimant is capable of performing,

[ 121 Pa. Commw. Page 640]

    and Claimant is therefore presumed to be totally disabled. (Emphasis added.)

Employer presented testimony of an available position as junior bookkeeper/data entry clerk for which Claimant is technically qualified. N.T., pp. 7, 10, 13-14, 23, April 16, 1986 Hearing. Testimony elicited from Claimant and Dr. Lowe, however, established that Claimant is not capable of presently performing the job responsibilities of this position or any position. Findings of Fact Nos. 8, 14; Conclusions of Law Nos. 6, 11; N.T., pp. 28-30, April 16, 1986 Hearing; Dr. Lowe's Deposition, p. 55. Employer therefore failed to sustain its burden of proving suitable, available work. See Economy Decorators, Inc. v. Workmen's Compensation Appeal Board (Federici), 96 Pa. Commonwealth Ct. 208, 506 A.2d 1357 (1986).*fn6 Accordingly, the referee committed no error of law.

Claimant's cross-petition for review raises the final issue to be addressed, that being whether the Board erred as a matter of law in reversing the referee's decision insofar as it assessed attorney's fees against Employer for engaging in an unreasonable contest pursuant to Section 440 of the Act, 77 P.S. § 996.*fn7 Claimant contends that Employer's medical testimony is equivocal since based upon incomplete data and examination; that the testimony was founded solely upon lack of objective evidence and contained an admission that the cervical

[ 121 Pa. Commw. Page 641]

    fusion surgery alone would create disability. Section 440 provides in pertinent part that:

In any contested case where the insurer has contested liability in whole or in part, the employe . . . in whose favor the matter at issue has been finally determined shall be awarded, . . . a reasonable sum for costs incurred for attorney's fee, . . . : Provided, That cost . . . may be excluded when a reasonable basis for the contest has been established. . . .*fn8

Attorney's fees are generally awarded where a claimant prevails unless evidence of record demonstrates a reasonable basis for an employer's contest. Equitable Gas Co. v. Workmen's Compensation Appeal Board (Haines), 82 Pa. Commonwealth Ct. 436, 474 A.2d 1239 (1984). A reasonable contest is established when medical evidence is conflicting or susceptible to contrary inferences and there is an absence of evidence that an employer's contest was frivolous or filed to harass a claimant. Penczkowski v. Workmen's Compensation Appeal Board (Foster-Wheeler Energy Corp.), 97 Pa. Commonwealth Ct. 419, 509 A.2d 964 (1986).

Employer presented the medical testimony of Dr. Martin L. Beller who admitted that his examination of Claimant was based upon incomplete medical records, but stated that the later data he reviewed reinforced his opinions. He also testified, inter alia, that Claimant's cervical fusion surgery was unnecessary; that her symptoms were inconsistent with those caused by C-7

[ 121 Pa. Commw. Page 642]

    radiculopathy as diagnosed by Dr. Lowe; and that Claimant had recovered from her work injury. Dr. Beller's Deposition, pp. 23-26, 34-36. Dr. Beller's medical testimony, taken together with the absence of evidence indicating that Employer's contest was frivolous or filed to harass Claimant, sufficiently support the Board's reversal of the referee's award of attorney's fees pursuant to Section 440 of the Act.*fn9

Accordingly, the Board's final amended order is affirmed in all respects.

Order

And Now, this 12th day of December, 1988, the final amended order of the Workmen's Compensation Appeal Board dated October 9, 1987 is affirmed in all respects.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


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