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10/27/97 TRACY RITTER v. WORKERS' COMPENSATION

October 27, 1997

TRACY RITTER, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (BOB'S BIG BOY), RESPONDENT



Appealed From No. A95-1653. State Agency Workers' Compensation Appeal Board.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY

SENIOR JUDGE NARICK

FILED: October 27, 1997

The issue before this Court is whether a claimant that fails to introduce the costs of litigation before a Workers' Compensation Judge (WCJ), but is granted costs of litigation, should be allowed to reopen the record to introduce evidence of costs.

Tracy Ritter (Claimant) appeals from the order of the Workers' Compensation Appeal Board (WCAB) that reversed the WCJ's grant of her costs of litigation against Bob's Big Boy, Inc. (Employer). We vacate and remand.

Claimant slipped on a wet floor while at work, reporting the incident to her supervisor but not pursuing immediate medical treatment. Eventually, Claimant received treatment from Robert L. Green, D.O. Claimant sought medical benefits which Employer denied but as a courtesy paid for all related medicals. Dr. Green released Claimant from medical treatment on March 1, 1991, and she subsequently returned to work. *fn1 Claimant again received treatment for knee pain in November 1992 and January 1994, which Employer also denied.

Following a hearing, the WCJ determined that while Claimant had suffered an injury, she had fully recovered as of March 19, 1991. The WCJ concluded that Claimant had "medical bills for treatment of the injury" (Conclusion of Law 2) and that "costs should be awarded to the Claimant." (Conclusion of Law 7.) However, Claimant failed to introduce into evidence any bill of costs.

Employer appealed arguing that the WCJ erred in granting ligation costs pursuant to Section 440 of The Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996, because applicable regulations require such claims for reimbursement to be submitted into the record. Employer also argued that the WCJ erred in granting litigation costs because Claimant did not receive a determination which, in whole or in part, was in her favor. Employer contended that Claimant had gained no monetary or change in status benefit from filing the claim petition, as Employer had already paid her medicals up to March 19, 1991, and thus, was not entitled to benefits.

Relying on St. Mary's Home of Erie v. Workers' Compensation Appeal Board (Stadtmiller), 683 A.2d 1266 (Pa. Commw. 1996), the WCAB reversed. The WCAB held that Claimant failed to meet her burden of proving the amount of litigation costs prior to the close of record and thus, the WCJ abused its discretion in granting costs. The WCAB did not address Employer's second argument that Claimant had not received a determination, in whole or in part, in her favor.

On appeal to this Court, *fn2 Claimant argues that the WCAB erred in refusing to remand for a determination of litigation costs because the WCJ had already awarded such costs but closed the record before the costs could be submitted.

Section 440 of the Act states:

Contested cases regarding liability; attorney's fees and other costs; ...


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