IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jaime Martinez

, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Silvi Corporation), : No. 1016 C.D. 201 6

Respondent : Submitted: December 9

, 2016

BEFORE: HONORABLE ROBERT SIMPSON

, Judge

HONORABLE JULIA K. HEARTHWAY

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: March 29, 2017

Ja im e Martinez (Claimant) petition s for review of a decision of the

Workers ’ Compensation Appeal Board (Board) which affirmed a decision of the

Workers ’ Compensation Judge (WCJ) marking a termination petition as

withdrawn.

On July 8, 2015

, Claima nt susta ined an injury compensable under the

Workers’ Compensation Act 1 (Act) and described in the Notice of Compensation

P ayable filed with the Board as a right wrist fracture. Claimant received benefits

of $845.83 per week based upon a weekly average wage of $1,268.75.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1

- 1041.4, 2501

- 2708.2 Claimant filed a M odification of the description of injury and Penalty

Petition on September 23, 2015

. (Respondent’s Amended Brief at 8). On

November 10, 2015

, Claim ant gave a deposition in which he was questioned on the

nature of his inj ury and any restrictions or pain he was still experiencing. On

December 2, 2015, Claimant ’s physician Dr. Didizian was deposed a s to his

opinion on the status and extent of Claimant’s injury, and his opinion on whether

Claimant could return to work. ( Rep roduced Record (R.R.) at 55a

- 56a.)

On December 7, 2015, Silvi Corporation ( Employer ) filed a

termination petition averring that Claimant had responded in bad faith to a specific

job offer. ( R.R. at 1a. ) On December 9, 2015, Employer ’s counsel made a re quest

to the WCJ to withdraw the petition on the basis th at it was filed by mistake, as

E mployer had intended to file a suspension petition, not a termination petition.

(R.R. at 11a.) The WCJ issued an order dated that same day

, marking the petition

withd rawn on motion of E mployer’s counsel received via correspondence

. Id.

Employer filed the correct suspension petition the same day. ( R.R. at 20a.) No

answer was filed by the Claimant p rior to the withdrawal of the termination

petition

, nor was evidence entered into the record by either party. (Respondent’s

Amended Brief at 14

- 15

. )

On December 30, 2015

, Claimant appealed the WCJ’s decision to the

Board, alleging that the WCJ had erred in withdrawing the termination petition

without d etermining if the contest was unreasonable

, entitling claimant to recover

attorney’s fees. (R.R. at 12

- a

- 13a.) The Board affirmed the decision of the WCJ

on June 9, 2016

, findin g that no contest had occurred, and thus no finding as to3

whether the contest was reasonable was necessary

. (R.R. at 21a). Claimant now

appeals to this Court. 2

The sole issue presented to this Court is whether the WCJ erred when

she failed to determine whether the Employer’s contest was reasonable. Section

440 (a) 3 of the Act proves in pertinent part that “ [i] n any contested case

... including

contested cases involving petitions to terminate

, reinstate, increase, reduce or

otherwise modify compensation awards... the employee or his dependent, as the

case may be, in whose favor the m atter 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 the costs incurred for attorney’s fees... [p] rovided, that cost for

attorney fees may be excluded when a reasonab le basis for the contest has been

established b y the employer or the insurer.”

It is well s ettled that in contested worker s ’ compensation cases, an

award o f attorney’s fees to the claimant is the rule

, and their exclusion the

exception, to be applied only in those cases where the record establishes that an

employer’s contest is reasonable. Cunningham v. W orkers’ Compensation Appeal

B oard (Franklin Steel Co.)

, 634 A.2d 267, 269 (Pa. Cmwlth. 1993 ). The burden is

on the employer to establish a reasonable basis for the contest. Wood v. Workers ’

Compensation Appeal Board (Country Care Private Nursing)

, 915 A.2d 181

, 187

( Pa. Cmwlth. 2007). A reasonable contest is established when there is conflicting

2 The Court’s scope of review is limited to determining whether findings of fact are

supported by substantial evidence, whether an error of law has been committed, or whether

constitutional rights have been violated. Hartman v. Worker’s Compensation Appeal Board

(Moyer Packing Co.)

, 636 A.2d 1245

, 1246 n.4 ( Pa. Cm wlth. 1994).

3 Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S.

§996(a).4

evid ence, or contradictory inferences therefrom. Lemansky v. Workers ’

Compensation Appeal Board (Hagan Ice Cream Company)

, 738 A.2d 498

, 501

( Pa. Cmwlth. 1999). Whether an employer presents a reasonable basis for its

contest is a question of law fully review able by this Court. Boyer v. Workers’

Compensation Appeal Board (First Capital Insulation, Inc.)

, 740 A.2d 294, 296

( Pa. Cmwlth. 1999).

Claimant contends the WCJ erred in failing to determine whether

there was a reasonable contest

, and failing to give him an opportunity to present

evidence to that effect. T he WCJ’ s opinion consists of a single line and therefore,

Claimant argue s, does not address the issue of whe ther the contest was reasonable

.

Claimant submits he was not permitted to present evidenc e as to whether the

contest was reasonable, and was thus unable to request attorney’s fees as permitted

by Section 440 of the Act

. Claimant argues that the WCJ failed to consider the fact

that the termination petition caused Claimant to incur counsel fees

, and that the

WCJ should have made reviewable conclusions of law and determined if a

reasonable contest had been established by the Employer. Claimant points to his

deposition and that of Dr. Didizian as evidence he incurred attorney ’ s fees.

Claimant further a lleges that Employer concealed, an d WCJ failed to consider, that

C laimant had to prepare for and attend his deposition and the deposition of Dr.

Di d i z ian, matters for which he should be permitted to request counsel fees for in

the event o f an unreasonable contest.

Employer responds that there was no need to establish the existence of

a reasonable or unreasonable contest, as there was no co ntest at all. WCJ s and

reviewing courts “must look at the totality of the circumstances, since the

reasonableness of the contest may not necessarily depend on a conflict in evidence5

per se. ” Majesky v. Workmen’s Compensation Appeal Board (Transit America,

Inc.)

, 595 A.2d 761, 764 (Pa. Cm wlth. 1991). Employer a sserts the termination

petition was filed by mistake, and that this mistake was corrected when Employer

wi thdrew the termination petition and instead filed a suspension petition.

Employer argues that Claimant engaged in no specific preparation for litigation

stemming from the mistakenly filed pe tition and no answer or evidence was ever

filed. Therefore, the WCJ had no need for findings of fact or conclusions of law.

Further, Employer points out that the depositions of Claimant and Dr. Didizian

were taken before the termination petition was ever filed. In fact, Employer

argues, those depositions were taken and submitted into evidence in ongoing

litigation resulting from the filing of Claimant’s September 23

, 2015 petition for

modification and penalty. Employer has also offered these depositions into

evidence in support of its correctly filed suspension petition. 4

Reviewing the totality of circumstances, it is clear that no contest

existed as Employer withdrew within forty

- eight hours what was erroneously fi led.

If there ever was a case of “no harm, no foul,” this is it.

For these reasons, the decision of the Board is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge

4 It is worth noting that

, as these depositions were offered as evidence in support of two

other petit i ons being considered by a WCJ, C laimant will have the opportunity to claim his

attorney’s fees relating to these depositions if he prevails in either.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jaime Martinez, :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Silvi Corporation), : No. 1016 C.D. 2016

Respondent :

O R D E R

AND NOW, this 29 th day of March, 201 7

, the order of the Workers’

Compensation Appeal Board is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge