The opinion of the court was delivered by: President Judge Leadbetter
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
Claimant Thomas Grady petitions for review from that portion of the December 20, 2010 order of the Workers‟ Compensation Appeal Board (Board) that reversed the Workers‟ Compensation Judge‟s (WCJ) award of attorney‟s fees against Employer Lutz t/a Top of the Line Roofing for an unreasonable contest under Section 440(a) of the Workers‟ Compensation Act (Act).*fn1 We affirm.
On July 12, 2007, Claimant suffered a T12 burst fracture resulting in paraplegia of both lower extremities and depression when he fell from a rooftop. On November 14, 2007, Claimant filed a claim petition naming Jerome Lutz t/a Top of the Line Roofing as his employer, alleging that he suffered his injuries in the course of employment with Employer and seeking payment for loss of wages (full disability from July 13, 2007 to November 14, 2007), medical bills and counsel fees. In its answer, Employer denied the allegations in the claim petition and averred that Claimant was an independent contractor. On November 15, 2007, Claimant filed a second claim petition with the same allegations, this time naming both Employer and the Uninsured Employers Guaranty Fund. In its answer, the Fund denied Claimant‟s allegations.*fn2
Once before the WCJ, the parties agreed to bifurcate the matter and permit her to first decide the threshold issue of whether Claimant was an employee or an independent contractor before proceeding with the remainder of the case. After considering testimony from both Claimant and Mr. Lutz, the WCJ in a July 9, 2008, interlocutory decision ultimately concluded that Claimant was an employee at the time of injury. In addition, the WCJ in a January 14, 2009 decision concluded that Employer did not present a reasonable contest after July 9, 2008, stating as follows:
The Employer had a reasonable basis to contest the matter until such time as the decision on the threshold issue of employer v. independent contractor was issued on July 9, 2008. At that time, there was no real issue of material fact left to be decided as the parties agreed to Claimant‟s medical condition. Accordingly, the Employer should have begun the payment of compensation benefits to the Claimant. Therefore, an unreasonable contest counsel fee will be awarded. This Judge finds the 20% attorney fee should be paid by the Employer and NOT deducted from Claimant‟s share of the award until the date of this decision. Thereafter the 20% attorney fee should be deducted from Claimant‟s share of the award.
WCJ‟s January 14, 2009 Decision, Finding of Fact No. 22.
On appeal, the Board affirmed that part of the WCJ‟s decision finding that Claimant was an employee, but reversed the award of attorney‟s fees and stated as follows:
After the Interlocutory Decision was issued by the WCJ, in which Claimant was found to be an employee, [Employer] did not put forth any evidence or take any action which would require Claimant to prove his case. In fact, both parties entered into an agreement that Claimant‟s medical condition was not at issue in this litigation and accordingly there would be no medical evidence submitted by either party. Therefore, because [Employer] did not actually contest this matter but simply did not pay compensation benefits, we believe that the WCJ erred in awarding Claimant unreasonable contest attorneys‟ [sic] fees.
Board‟s December 20, 2010 Decision at 8. Claimant‟s petition for review to this
Section 440(a) of the Act states, "where a claimant succeeds in a litigated case reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest." U.S. Steel Corp. v. Workers' Comp. Appeal Bd. (Luczki), 887 A.2d 817, 820 (Pa. Cmwlth. 2005). Indeed, the award of attorney‟s fees is mandatory under Section 440(a) unless the employer meets its burden. Yeagle v. Workmen's Comp. Appeal Bd. (Stone Container Corp.), 630 A.2d 558, 559 (Pa. Cmwlth. 1993). In determining whether a contest is reasonable, we must look to the totality of the circumstances. Eidell v. Workmen's Comp. Appeal Bd. (Dana Corp.), 624 A.2d 824 (Pa. Cmwlth. 1993). Generally, a contest is ...