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, Judge 1

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), 2 77 P.S. § 996(a), and , therefore, ordering that Employer

was entitled to a reimbursement of th at cost

. W e 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 s upport 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 w ork

- 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, Emp loyer 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, Claim a nt 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 Claim a nt’s claim

petition. T he WCJ also granted Claimant’s revi ew 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 Employ er’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

me rits, but vacated it , in part, based on its determination that Claim a nt w as 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 rec ord 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 deposi tion 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 7 17, 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 amo unt of $2665

, 3 but reaffirmed his December 2011 decision and order in all

other respects. T he 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]isgo rgement 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 jurisdict ion 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 i n the present case are the litigation costs for Dr.

Si nger’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 indicat ed, 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 b e a pure rebuttal

4 Section 440(a), in pertinent p art, 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 who se 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 summa ry 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 d id

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 th e 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 th at 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, JudgeIN 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, 201 6 , the order of the Workers’

Compensation Appeal Board is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge