IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Daniels, :

Petitioner :

 :

v. : No. 1299 C.D. 2015

 : SUBMITTED: November 20, 2015

Workers’ Compensation Appeal :

Board (Giancarli Construction Co.), :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE LEADBETTER FILED: February 4, 2016

Claimant Charles Daniels petitions for review of an order of the 

Workers’ Compensation Appeal Board that affirmed a decision of a Workers’ 

Compensation Judge (WCJ), on remand, determining that litigation expenses in the 

amount of $2665 for the October 19, 2011 deposition of Claimant’s medical 

expert, Maurice Singer, D.O., should not have been included in the reimbursement 

paid to Claimant’s law firm pursuant to Section 440(a) of the Workers’ 

 

1

This case was assigned to the opinion writer on or before January 31, 2016, when Judge 

Leadbetter assumed the status of senior judge.
2

Compensation Act (Act),277 P.S. § 996(a), and, therefore, ordering that Employer 

was entitled to a reimbursement of that cost. We affirm.

In April 2010, Claimant was employed as a laborer for Employer 

Giancarli Construction Company, earning $23.85 per hour and working forty hours 

per week, when a support beam fell on his left foot and he sustained a work injury. 

Initially, Employer issued a medical-only notice of temporary compensation 

payable describing the injury as a left foot contusion. In May 2010, Claimant filed 

a claim petition alleging a work-related injury in the nature of a fractured left foot. 

In June 2010, Employer issued a notice stopping temporary compensation and a 

notice of workers’ compensation denial alleging that Claimant did not sustain a 

work-related injury. Subsequently, Employer filed a termination petition in 

December 2010, alleging that Claimant had fully recovered from any work injury 

as of December 1, 2010. In February 2011, Claimant filed a review petition, 

seeking to amend the injury description to include ankle and lower back pain. The 

petitions were consolidated for hearing.

In December 2011, the WCJ determined that Claimant sustained a 

strain and sprain of his left ankle, with synovitis, and granted Claimant’s claim 

petition. The WCJ also granted Claimant’s review petition with respect to the 

allegation of ankle pain, but denied it with respect to the allegation of low back 

pain. Further, concluding that Claimant was disabled only for the closed period of 

April 7, 2010 to December 1, 2010, the WCJ granted Employer’s termination 

petition as of December 1, 2010. Finally, the WCJ ordered that Employer 

 

2 Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25, 

as amended.
3

reimburse Claimant’s counsel for litigation costs in the amount of $5963.30. Both 

parties appealed.

In October 2013, the Board affirmed the WCJ’s decision on the 

merits, but vacated it, in part, based on its determination that Claimant was entitled 

only to reimbursement for litigation costs incurred for prosecuting or defending 

winning issues. Accordingly, noting that Claimant’s bill of costs was not part of 

the record and that, therefore, it could not determine whether the $5963.30 in 

litigation costs awarded included the cost of Dr. Singer’s second deposition, the 

Board remanded the matter for the WCJ 1) to make a determination as to whether 

the cost of that deposition was incurred on the prevailing issues or the losing 

issues; and 2) to make an award consistent with that determination. In support, it 

cited Jones v. Workers’ Compensation Appeal Board (Steris Corporation), 874 

A.2d 717, 721 (Pa. Cmwlth. 2005), holding that “a claimant must prevail on the 

contested issue in order to be awarded litigation costs.”

On remand, the WCJ determined that Dr. Singer in his October 2011 

deposition addressed issues on which Claimant did not prevail, such as the 

attempted addition of a back injury in Claimant’s review petition and the alleged 

full recovery issue in Employer’s termination petition. Accordingly, the WCJ in 

his July 2014 decision concluded that Employer was entitled to a reimbursement in 

the amount of $2665,

3

but reaffirmed his December 2011 decision and order in all 

other respects. The Board affirmed, citing Barrett v. Workers’ Compensation 

Appeal Board (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth. 2010), in support of its 

conclusion that “[d]isgorgement of litigation costs by a claimant’s attorney may be 

 

3

The witness fee for Dr. Singer’s second deposition was $2500 and the transcript cost was 

$165. ($2500 + 165 = $2665)
4

ordered by a WCJ.” Board’s July 8, 2015 Decision at 4. Claimant raises two 

issues on appeal: 1) whether the WCJ erred in failing to award him certain 

litigation costs in accordance with Section 440(a) of the Act where he successfully 

litigated his petition, in part; and 2) whether the Board erred in affirming the 

WCJ’s order directing Claimant’s counsel to reimburse Employer for those costs, 

where the WCJ and the Board allegedly lacked jurisdiction to do so.

Section 440(a) of the Act permits an award of reasonable litigation 

costs to a claimant when a matter at issue has been finally determined, in whole or 

in part, in his favor.4 At issue in the present case are the litigation costs for Dr. 

Singer’s second deposition. Claimant deposed Dr. Singer a second time for 

purposes of rebutting the testimony of Employer’s medical expert, John R. Duda, 

M.D. In that regard, Claimant’s counsel stated at the beginning of Dr. Singer’s 

second deposition that the purpose was “to take his opinions as to an IME 

deposition of Dr. John R. Duda whose report and deposition occurred after Dr. 

Singer testified on January 26, 2011.” Dr. Singer’s October 19, 2011 Deposition, 

Notes of Testimony (N.T.) at 5. She indicated, therefore, that she would be 

limiting her questions to Dr. Duda’s report and Dr. Singer’s opinions regarding 

that report. In response, Employer’s counsel stated that, during a conference call, 

the WCJ “admonished both counsel that he expects this to be a pure rebuttal 

 

4

Section 440(a), in pertinent part, provides:

(a) 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, ... the employe ... 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 ....
5

deposition and that’s about it and as long as - - and I objected to the doctor’s dep, 

but the [WCJ] overruled me. So, we’re here limited to the purposes you said.” Id. 

at 5-6. Claimant’s counsel agreed with her opposing counsel’s summary of the 

limited purpose of the deposition. Id. at 6. See also WCJ’s December 9, 2011 

Decision, Finding of Fact (F.F.) No. 13.

In any event, the WCJ accepted Dr. Duda’s opinions that Claimant 

had fully recovered, that he did not sustain a work-related back injury and that he 

did not have complex regional pain syndrome. The WCJ rejected Dr. Singer’s 

opinions that Claimant had not fully recovered from his work injury and his 

diagnoses regarding Claimant’s back. Id., F.F. No. 21. Accordingly, Claimant did 

not prevail on the contested issues for which Dr. Singer testified in his second 

deposition.

Moreover, we conclude that the WCJ and the Board, respectively, had 

jurisdiction to make and to affirm the reimbursement of the litigation costs for Dr.

Singer’s second deposition. Barrett, 987 A.2d at 1290 (holding that, where an 

employer made an overpayment of litigation costs for a deposition, a claimant 

could be ordered to refund that overpayment). As Employer emphasizes, the WCJ 

ordered the reimbursement of litigation costs, not workers’ compensation benefits. 

Accordingly, where, as here, the costs attributable to the unsuccessful issues could 

be segregated, the Board did not err in affirming the WCJ’s order directing that 

Claimant’s counsel reimburse Employer for litigation costs in the amount of 

$2665.

Accordingly, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Daniels, :

Petitioner :

 :

v. : No. 1299 C.D. 2015

 :

Workers’ Compensation Appeal :

Board (Giancarli Construction Co.), :

Respondent :

O R D E R

AND NOW, this 4th day of February, 2016, the order of the Workers’ 

Compensation Appeal Board is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge