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Trautman v. Workers' Compensation Appeal Board (Blystone Tree Serv. & Pennsylvania Uninsured Employer Guaranty Fund)

Commonwealth Court of Pennsylvania

November 14, 2014

Kris A. Trautman, Petitioner
v.
Workers' Compensation Appeal Board (Blystone Tree Service and Pennsylvania Uninsured Employer Guaranty Fund), Respondents

 Submitted September 5, 2014

Appealed from No. A08-1731. State Agency: Workers' Compensation Appeal Board.

Douglas A. Williams and Sandra W. Kokal, Pittsburgh, for petitioner.

Carl J. Smith, Jr., Pittsburgh, for respondent Uninsured Employers Guaranty Fund.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge.

OPINION

 BROBSON, JUDGE

Page 601

Petitioner Kris A. Trautman (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed the decision of Workers' Compensation Judge Rosalia Parker (WCJ), declining to order the Pennsylvania Uninsured Employer Guaranty Fund (UEGF) to pay the unreasonable contest fees assessed against Blystone Tree Service (Employer). We now affirm.

On July 5, 2007, Employer asked Claimant to climb a tree in order to prune the dead branches. (Reproduced Record (R.R.) at 26a.) As Claimant was working in the tree, a clip on his safety rope malfunctioned, and he fell approximately twenty-five feet. ( Id. at 27a.) Claimant sustained many severe injuries, some necessitating surgery. ( Id. at 29a-36a.)

Claimant filed a claim petition on September 6, 2007. ( Id. at 5a.) This was followed on October 12, 2007 by a claim petition seeking benefits from UEGF because Employer did not maintain workers' compensation insurance. ( Id. at 8a.) UEGF answered the petition on October 30, 2007, and the WCJ rendered a decision on August 28, 2008. ( Id. at 10a-11a, 133a.)

The WCJ granted Claimant's petition and found that Employer did not have a reasonable basis for contest. (WCJ Decision at 10.) She awarded counsel fees for unreasonable contest against Employer. ( Id. at 11.) In her decision, the WCJ specifically rejected Claimant's argument

Page 602

that unreasonable contest fees should be paid by UEGF:

Claimant's counsel argues in proposed findings that as Employer is uninsured, the ultimate responsibility of paying those attorney fees will be that of UEGF. However, Section 1601 of the [Workers' Compensation Act (Act)] Act [, Act of June 2, 1915, P.L. 736, added by the Act of November 9, 2006, P.L. 1362 77 P.S. § 2701,] clearly states, " The fund shall not be considered an insurer and shall not be subject to penalties, unreasonable contest fees or any reporting and liability requirements under Section 440 [of the Act]." [Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. ยง ...

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