91 Pa. Commw. 112 | Pa. Commw. Ct. | 1985
Opinion by
Bell Telephone Company of Pennsylvania (employer) appeals an order of the Workmen’s Compensation Appeal Board (Board), affirming’ the referee’s determination that Mark M. Grussey’s (claimant) disability had not ceased and that attorney’s fees and penalties should be assessed against employer.
Claimant was injured in an accident while working for Bell on February 17,1977. The employer filed a Notice of Compensation Payable and paid compensation until March 12, 1977 when payments were unilaterally stopped. On August 28, 1978, claimant filed a Review Petition alleging that his compensation had been improperly terminated. The employer asked for a last-minute continuance, which was granted, at which time the referee issued an interlocutory order stating that the employer had illegally stopped payment and these payments were to be reinstated retroactively. Attorney’s fees were awarded to claimant, because the referee found no reasonable basis for termination under the Pennsylvania Workmen’s Compensation Act (Act).
The Board granted employer’s Petition for Supersedeas and remanded to the referee for an evidentiary hearing to be treated as a petition to terminate.
The referee found that claimant ’is disability had not ceased or changed in character or extent on March 13, 1977 and that claimant had been totally disabled for .any type of work since February 18, 1977 as a result of chronic lumbrodorsal and lumbrosaeral sprains resulting from his injury, osteoarthritis (which was
The Board granted employer’s Petition for Supersedeas as to the counsel fees, denied as to compensation, and remanded to the referee for a separate hearing on the penalties. The referee’s failure to list two of employer’s witnesses, who had testified ¡that claimant was not disabled, was found to be improper.
The referee again found that there was no reasonable basis for the employer to terminate, that the stoppage was illegal under the Act,
The employer appealed to .the Board and the Board affirmed. Hence this appeal, in which the employer
These excessively numerous, repetitive and overlapping arguments cannot obfuscate the fact that a timely termination petition was not filed. The proper filing of a petition to terminate or modify the compensation award would have operated as a supersedeas and allowed suspension of payments pursuant to Section 413 of the Act. However, employer here merely quit payment without proceeding as the Act mandates. When the referee heard the evidence, he clearly believed the testimony of claimant’s witnesses rather than that of the employer.
Once evidence is found to be competent, it is the referee’s function to determine the weight and credibility of the evidence and to resolve conflicts. In doing so he may accept or reject the testimony of any
Our scope of review where the party with the burden of proof has not prevailed is whether the findings can be sustained without a capricious disregard of evidence, and whether the referee’s findings are consistent with each other and with the conclusions of law. Priggins v. Workmen’s Compensation Appeal Board, 75 Pa. Commonwealth Ct. 482, 462 A.2d 352 (1983). We have reviewed the record and see no evidence of a capricious disregard of evidence by the referee. Bather, the referee chose to believe claimant’s witnesses rather than employer’s. The imposition of penalties is proper under the Act
However, an award of attorney’s fees may be excluded when a reasonable basis for the contest has been established. The reasonableness of an employer’s con
Therefore, the award of counsel fees to the claimant was unwarranted and is reversed. The decision of the Board concerning the denial of the termination petition and award of penalties is affirmed.
Order
And Now, August 14, 1985, the award of attorney’s fees is reversed and the decision of the Workmen’s Compensation Appeal Board concerning the denial of the termination petition and award of penalties is affirmed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §996.
77 P.S. §774.1.
77 P.S. §991 (d) (i).