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LEON DRAYTON v. WORKMEN'S COMPENSATION APPEAL BOARD (FRUEHAUF CORPORATION) (12/27/88)

decided: December 27, 1988.

LEON DRAYTON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FRUEHAUF CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Leon Drayton v. Fruehauf Corporation, No. A-91793.

COUNSEL

Marvin Beshore, Milspaw & Beshore, for petitioner.

James F. Carl, Metzger, Wickersham, Knauss & Erb, for respondent.

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

Author: Narick

[ 122 Pa. Commw. Page 345]

The sole issue before us in this workmen's compensation appeal is whether attorney's fees should be assessed against Fruehauf Corp. (Employer) for failure to establish a reasonable basis for its contest of Leon Drayton's (Claimant's) claim for benefits.*fn1 The referee awarded counsel fees; the Workmen's Compensation Appeal Board (Board) reversed. We now reverse.

At the hearing held on October 22, 1984, the Claimant described the circumstances surrounding two work-related injuries to his back. The first occurred December 19, 1983, when Claimant experienced back pain on the job. (His job consisted of applying decals to truck panels, which involved bending from the waist and stretching out over a table to apply pressure to the decal.) He reported the pain to the company nurse, who applied hot packs and liniment and referred Claimant to the company physician, Dr. Barnoski. Dr. Barnoski prescribed an elastic belt and medication, which alleviated the pain sufficiently so as to allow Claimant to continue working. Then, on May 9, 1984, Claimant was temporarily assigned to a different position, that of operating a floor drill, a jack-hammer type device which vibrates violently. After approximately ten hours of using the drill, Claimant experienced a sharp pain in his lower back. When he arrived for work next morning, Claimant reported his back pain to his foreman. He went to the company nurse and was sent home. He again saw Dr. Barnoski, who prescribed medication and rest. Dr. Barnoski then referred Claimant to Dr. Richard Hallock, who first examined him on May 30, 1984. The

[ 122 Pa. Commw. Page 346]

Employer presented no evidence at the referee's hearing.

Both parties submitted expert medical testimony by way of deposition. In rendering his award of compensation, the referee accepted Dr. Hallock's conclusion that Claimant was disabled due to chronic lumbo-sacral strain caused by operating the floor drill at work.

In determining that Employer did not have a reasonable basis for contesting Claimant's claim, the referee noted that the Employer had offered no evidence to challenge the fact or cause of Claimant's injury, nor his motivation to work. Further, the physician who testified on behalf of the Employer, Dr. Perry Eagle, conceded that "[C]laimant's employment activity could have created the strain on his lower back." Finding of Fact No. 15. Accordingly, the referee awarded counsel fees pursuant to Section 440 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 996.

On Employer's appeal, the Board affirmed the grant of benefits, but reversed on the reasonable contest issue because it concluded that "it [is] plausible to find that Dr. Eagle considered the Claimant to have nothing wrong with him and be malingering." Board opinion at 2.

The question of the reasonableness of an employer's contest is one of law which must be based upon the facts, as found by the referee, which are supported by substantial evidence of record. Edmond v. Workmen's Compensation Appeal Board (Devon ...


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