56 Pa. Commw. 92 | Pa. Commw. Ct. | 1981
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We are required in this workmen’s compensation case to review the conclusion of the Workmen’s Compensation Appeal Board that Jones & Langhlin Steel Corporation, a self-insured employer, had a reasonable basis for contesting the claim of Steve J. Men-cher, Jr. for compensation for total disability. At issue is Mencher’s entitlement to an award for an attorney’s fee. A referee made an award but the Workmen’s Compensation Appeal Board reversed the referee’s determination. Mr. Mencher has appealed the Board’s action in this regard. We affirm.
Section 440 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996, provides that an employee in whose favor a contested compensation case has been finally determined shall be awarded a reasonable attorney’s fee, provided that the “attorney fee may be excluded when a reasonable basis for the contest has been established. ’ ’ After a careful review of this record we are satisfied that the Board correctly concluded as a matter of law based on the facts that J ones
6 Langhlin had a reasonable basis for contesting Mr. Mencher’s claim for compensation.
On February 28, 1978 Mr. Mencher filed with the Board a Petition to Set Aside Final Receipt in which it was claimed that he “has become totally disabled as a result of his work-related injury” and that the injury happened on either November 3, 1977 or October 27, 1977.
In overturning the referee’s award of an attorney’s fee, the Appeal Board was mindful, as its opinion demonstrates, that the two first filings concerning Mr. Meneher’s claim referred to an injury occurring on October 27,1977, and that Mr. Meneher’s Petition To Set Aside a Final Receipt (which the referee treated as a Petition to Reinstate) referred to a work-related injury on one of two certain days. The employer filed an answer contesting the claim as presented. At the referee’s hearings it learned that Mr. Meneher’s problem was not due to an injury on any specific date but that it was a symptom of a rare disease, according to Dr. Morris. This expert opinion was first expressed only in written reports, offered but excluded from evidence. Dr. Morris’s deposition was taken some months later and his opinion still later confirmed by Dr. Baraff, acting for the employer. We cannot say that the Board erred in concluding on the special facts of this case that the employer had a reasonable basis for contest of Mr. Meneher’s claim for compensation.
Order affirmed.
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Axd Now, this 14th day of January, 1981, the order of the Workmen’s Compensation Appeal Board made September 2,1979 is affirmed.
The date November 3, 1977 is typed on the form hut crossed out and the notation “10-27-77” written just above.