Verizon PA, Inc. v. WCAB (Kosinski-Carman) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Verizon Pennsylvania, Inc., Petitioner v. Workers Compensation Appeal Board (Kosinski-Carman), Respondent BEFORE: : : : : : : : : : : No. 1115 C.D. 2007 Submitted: December 7, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: March 12, 2008 In this Petition for Review, Verizon Pennsylvania, Inc. (Employer)1 challenges the order of the Workers Compensation Appeal Board (Board) as incorrectly awarding attorney s fees to Loretta Kosinski-Carman (Claimant). On 1 Employer s predecessor was Bell Atlantic Pennsylvania, which was preceded by Bell Telephone Company of Pennsylvania, which was, in turn, preceded by AT&T. For purposes of this opinion, all of these entities shall be referred to as Employer. appeal to this Court,2 Employer argues that the Board erred in awarding attorney s fees because: (1) the issue of attorney s fees was waived because Claimant did not raise it in her Notice of Appeal to the Board; (2) Employer s contest of Claimant s reinstatement petition was reasonable; and (3) Claimant received short-term disability benefits during her periods of disability, and Employer was self-insured for both short-term disability and workers compensation. Employer first argues that because Claimant did not raise the issue of attorney s fees in her Notice of Appeal, Claimant waived the issue and the Board erred in considering whether to award fees to Claimant. We disagree. As Employer notes in its brief, Title 34, Section 111.11(a)(2) of the Pennsylvania Administrative Code requires that an appeal to the Board be filed on a form provided by the Board and shall include [a] statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of law which are alleged. General allegations which do not specifically bring to the attention of the Board the issues decided are insufficient. 34 Pa. Code § 111.11(a)(2). Claimant s Notice of Appeal was filed on a Board form and specifically stated that Claimant believed that Conclusion of Law 5, that Employer s contest was reasonable, was in error. As the Supreme Court of Pennsylvania stressed in Ramich v. Worker s Compensation Appeal Board, 564 Pa. 656, 770 A.2d 318 (2001), the award of attorney s fees to a claimant is mandatory unless the employer s contest is reasonable. Therefore, 2 This Court s scope of review is limited to determining whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Jordan v. Workers Compensation Appeal Board (Philadelphia Newspapers, Inc.), 921 A.2d 27, 36 n.4 (Pa. Cmwlth. 2007). 2 Claimant s assertion in her Notice of Appeal that the WCJ erred in concluding that Employer s contest was reasonable was sufficient to bring the issue of the award of attorney s fees to the Board s attention. This was also sufficient to put Employer on notice that the reasonableness of its contest and, therefore, the issue of attorney s fees was before the Board. Employer next argues that the Board s opinion is unclear as to whether Claimant or Employer is to pay Claimant s attorney s fees but, because both the WCJ and the Board found Employer s contest to be reasonable, fees should not be assessed against Employer. Because the Board s Opinion and Order are unclear as to whether they merely approved Claimant s fee agreement with her attorney or award attorney s fees against Employer, we remand this case to the Board for clarification. Both the Board s reasoning and its terminology create uncertainty on the issue of whether the Board intended to award fees against Employer. Prior to beginning its discussion of fees, the Board agreed with the WCJ that Employer s contest was reasonable and rejected Claimant s argument to the contrary. Section 440(a) of the Act states that the cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer, and this Court has held that in cases where the employer s contest is reasonable, fees are not to be awarded. See, e.g., Ball Incon Glass Packaging v. Workmen s Compensation Appeal Board (Lentz), 682 A.2d 85, 89-90 (Pa. Cmwlth. 1996) (reversing Board s affirmation of WCJ s award of attorney s fees where this Court determined that the employer s contest was reasonable); General 3 Carbide Corp. v. Workmen s Compensation Appeal Board (Daum), 671 A.2d 268, 272 (Pa. Cmwlth. 1996) (reversing Board s award of attorney s fees where this Court determined that the employer s contest was reasonable). The Board explained why it found that Employer s contest was reasonable: Claimant also argues that the WCJ erred in concluding that [Employer s] contest was reasonable. [Employer] presented the testimony of Stephen L. Fedder, M.D., who opined that Claimant s condition did not prevent her from performing her job with [Employer]. (Fedder Dep., 05/25/2005, pg. 27). Because Dr. Fedder opined that Claimant was physically capable of performing her job, his testimony, if believed, would have been legally sufficient to defeat Claimant s Petition. See Striker v. WCAB (California Univ. of Pa.), 650 A.2d 1109 (Pa. Cmwlth. 1994) (rejecting the claimant s argument that the defendant s contest was unreasonable where it presented medical evidence which, if found credible, could have supported a decision in its favor). As such, we reject Claimant s argument. (Board Op. at 6 n.4.) Therefore, despite the language discussing attorney s fees, the Board acknowledged that it had, as a matter of law, no basis upon which to award attorney s fees against Employer. After making this finding, the Board then begins its discussion of fees. The Board begins its discussion of fees by citing Section 440(a) of the Workers Compensation Act (Act),3 which the Board characterizes as stating in any contested case where the insurer has contested liability in whole or in part, the employee in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs 3 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(a). 4 incurred for attorney s fee, witnesses, necessary medical examination and the value of unreimbursed lost time to attend the proceedings. (Board Op. at 6.)4 After discussing Claimant s fee agreement with her attorney, the Board goes on to state: The WCJ determined Claimant s Fee Agreement to be reasonable. . . . The WCJ granted Claimant s Reinstatement Petition . . . . The WCJ failed to award Claimant s counsel an attorney s fee. Upon review, we have determined the WCJ erred in failing to award a fee to Claimant s counsel. The WCJ granted Claimant s Reinstatement Petition and thus, her attorney is entitled to a reasonable fee. (Board Op. at 7.) Following the Board s discussion of Section 440(a), such language speaking of an award of fees could be read as awarding attorney s fees from Employer to Claimant. However, rather than awarding the fees to the Claimant, the Board awards them to Claimant s counsel. (Board Op. at 7 (emphasis added).) The Board s Order further compounds this confusion, stating [t]he Decision and Order is hereby MODIFIED to reflect an approval of an award of twenty percent of the total award to Claimant s counsel. (Board Op. at 4 Section 440(a) states: In any contested case where the insurer has contested liability in whole or in part, including contested cases involving petitions to terminate, reinstate, increase, reduce or otherwise modify compensation awards, agreements or other payment arrangements or to set aside final receipts, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. 77 P.S. § 996(a) (emphasis added). 5 9 (italicized emphases added).) This order combines the award language of Section 440(a) with the term approval which echoes Section 442 of the Act, 77 P.S. § 998, which requires in part that: [a]ll counsel fees, agreed upon by claimant and his attorneys for services performed in matters before any workers' compensation judge or the board, whether or not allowed as part of a judgment, shall be approved by the workers' compensation judge or board as the case may be, providing the counsel fees do not exceed twenty per centum of the amount awarded. 77 P.S. § 998. Thus, from the language used, it is unclear whether the Board intended to award fees against Employer, or to approve Claimant s fee agreement with her attorney. Given that the Board s Order is not clear, we remand this case to the Board to clarify its Order and state whether Claimant or Employer is to pay Claimant s attorney s fee.5 RENÃ E COHN JUBELIRER, Judge 5 Because we remand to the Board on this issue, we do not reach Employer s final allegation of error, regarding whether the Board properly awarded attorney s fees based on a percentage of the gross amount awarded. If the Board did not, in fact, intend to award fees against Employer, then the issue is moot, as neither Claimant nor her attorney has appealed the Board s decision. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Verizon Pennsylvania, Inc., Petitioner v. Workers Compensation Appeal Board (Kosinski-Carman), Respondent : : : : : : : : : : No. 1115 C.D. 2007 ORDER NOW, March 12, 2008, the Order of the Workers Compensation Appeal Board in this matter is hereby VACATED IN PART as it relates to attorney s fees and the matter is REMANDED to the Workers Compensation Appeal Board, for clarification of its Order on the issue of whether attorney s fees are to be awarded to the Claimant. The Order is AFFIRMED in all other respects. Jurisdiction relinquished. RENÃ E COHN JUBELIRER, Judge

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