IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rosemarie Dymek, :

Petitioner :

: No. 1261 C.D. 2018

v. :

: Submitted: January 25, 2019

Workers’ Compensation Appeal :

Board (Harper & Row Keystone :

Employees FCU and Cumis :

Insurance Society, Inc.), :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: April 12, 2019

Rosemarie Dymek (Claimant) petitions for review of the August 16, 2018 

order of the Workers’ Compensation Appeal Board (Board) affirming the decision of 

the Workers’ Compensation Judge (WCJ) granting Claimant’s penalty petition but 

refusing to award Claimant unreasonable contest attorney fees.

Facts and Procedural History

Claimant originally sustained a work-related injury on June 7, 1996. On 

May 17, 2016, WCJ J. Joseph Grady circulated a decision granting the petition of 

Harper & Row Keystone Employees Federal Credit Union (Employer) seeking to have 

Claimant undergo a physical examination with Stuart Gordon, M.D., in Limerick, 
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Pennsylvania. In his decision, WCJ Grady further directed Employer to reimburse 

Claimant for one night at a hotel in the King of Prussia vicinity, not to exceed $200.00.1 

On January 5, 2017, Claimant filed a petition for penalties alleging that Employer 

violated the Act by failing to comply with WCJ Grady’s order directing that she be 

reimbursed for the hotel room bill related to the medical examination conducted by Dr. 

Gordon.2 (Findings of Fact Nos. 1-3.) Employer filed an answer denying the 

allegations of Claimant’s petition. (R.R. at 13a-14a.)

WCJ Howard Spizer conducted a hearing on February 7, 2017, at which 

counsel for Employer noted that a change of adjusters may have complicated and 

delayed payment of the reimbursement of the hotel bill. The parties also discussed 

Claimant’s counsel’s demand of an attorney’s fee of $750.00, which Employer alleged 

was unreasonable for a claim worth $150.00. Claimant’s counsel later indicated that 

he would accept a fee of $585.00, after which the penalty petition would be withdrawn. 

At the request of Employer’s counsel, the WCJ directed that said fee be paid within 30 

days of the hearing date. (Findings of Fact Nos. 3-4.)

WCJ Spizer conducted a subsequent hearing on May 8, 2017. At this 

hearing, Claimant’s counsel stated that he had not yet received his fee of $585.00, as 

agreed to at the prior hearing. Counsel for Employer again noted a change of adjusters 

in delaying payment, but indicated that a check in the amount of $750.00 was sent to 

 

1 Dr. Gordon conducted the medical examination on June 16, 2016. Claimant’s counsel sent

a letter dated July 13, 2016, to Employer’s counsel along with a copy of the hotel bill in the amount 

of $150.12 seeking reimbursement for the same. (Reproduced Record (R.R.) at 6a-7a.) Employer 

did not immediately reimburse Claimant. By letter dated October 3, 2016, Claimant’s counsel advised 

Employer’s counsel of the lack of reimbursement and that a penalty petition would be filed if payment 

was not made within 30 days. (R.R. at 8a.) 

 

2 By letter dated January 25, 2017, Employer provided Claimant’s counsel with a check in the 

amount of $150.12 for reimbursement of Claimant’s hotel bill. (R.R. at 15a-16a.)
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Claimant’s counsel on March 31, 2017. However, Claimant’s counsel refused to accept 

the check and instead demanded full payment of $2,873.05, which represented 9.3 

hours of work at a rate of $300.00 per hour. Claimant’s counsel also sought costs for 

a transcript totaling $154.15. (Findings of Fact Nos. 5-9.)

By decision circulated September 13, 2017, WCJ Spizer granted 

Claimant’s penalty petition, concluding that Employer failed to timely reimburse 

Claimant for her hotel expense incurred for traveling to the medical examination. WCJ 

Spizer awarded Claimant a 10% penalty on the $150.12 bill, or $15.00. WCJ Spizer 

next addressed Claimant’s request for unreasonable contest attorney fees. WCJ Spizer 

characterized Claimant’s counsel’s request for a fee in excess of $2,800.00 as 

unreasonable given the nature of the original $150.00 hotel bill and declared 

Employer’s violation in this matter to be de minimis. WCJ Spizer further found 

Claimant’s counsel’s rate of $300.00 per hour to be in excess of what is normally 

charged with regard to legal fees in the area. Moreover, WCJ Spizer agreed with an 

assertion by Employer’s counsel that the fee was inflated, did not reflect the difficulty 

of the matter involved, and appeared to be calculated to punish Employer. WCJ Spizer 

noted that Claimant’s counsel had the opportunity to accept a payment of $750.00, 

which he described as generous and fair, but rejected such payment. Ultimately, WCJ 

Spizer concluded that Employer’s contest was not unreasonable and refused to award 

attorney fees to Claimant’s counsel. (Findings of Fact Nos. 9-16.) 

Claimant appealed to the Board, but the Board affirmed. Claimant 

thereafter filed a petition for review with this Court. 
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Discussion

On appeal,3 Claimant argues that WCJ Spizer erred in denying her request 

for unreasonable contest attorney fees. More specifically, Claimant argues that the 

WCJ improperly shifted the burden of establishing an unreasonable contest to her and 

erred in relying upon argument of Employer’s counsel which was not supported by any 

evidence. We agree.

Section 440(a) of the Workers’ Compensation Act (Act)4 provides as 

follows:

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). In determining the reasonableness of an employer’s contest, the 

primary question is whether the contest was brought to resolve a genuinely disputed 

issue or merely for purposes of harassment. Montgomery Hospital v. Workers’ 

Compensation Appeal Board (Armstrong), 793 A.2d 182, 190 (Pa. Cmwlth. 2002). 

 

3 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether an error of law has been committed, or whether findings of fact are supported by 

substantial evidence. Anderson v. Workers’ Compensation Appeal Board (Penn Center for Rehab), 

15 A.3d 944, 947 n.1 (Pa. Cmwlth. 2010).

4 Act of June 2, 1915, P.L. 736, as amended, added by the Act of February 8, 1972, P.L. 25, 

77 P.S. §996(a).
5

Whether an employer’s contest is reasonable is a question of law fully reviewable by 

this Court. Id.

In the present case, Employer denied the allegation of Claimant’s penalty 

petition, i.e., that it failed to reimburse Claimant for the hotel bill, knowing the same 

to be false. In fact, within 20 days of the filing of Claimant’s claim petition, Employer 

forwarded a check to Claimant in the amount of $150.12, representing the 

reimbursement for this bill. Hence, there can be no question that Employer’s contest 

in this matter was unreasonable and the WCJ erred to the extent he concluded 

otherwise.5 However, a legitimate question remains as to the extent of attorney fees 

owed to Claimant’s counsel. In that regard, we note that at the first hearing in this 

matter, Claimant’s counsel was only seeking attorney fees in the amount of $750.00, 

which was later negotiated to a reduced amount of $585.00. However, as of the second 

hearing before WCJ Spizer, Claimant’s counsel had rejected an untimely check from 

Employer in the amount of $750.00 and instead sought attorney fees in excess of 

$2,800.00, as well as costs. Thus, a remand is warranted to allow the WCJ to reconsider 

the timesheet submitted by Claimant’s counsel and determine the appropriate amount 

of the attorney fees and costs due to said counsel.

Accordingly, the order of the Board, to the extent that it affirmed WCJ 

Spizer’s award of a 10% penalty to Claimant, is affirmed. However, the order of the 

Board, to the extent that it affirmed WCJ Spizer’s denial of Claimant’s counsel’s 

request for attorney fees and costs, is reversed and the matter is remanded to the Board, 

 

5 Further, we agree with Claimant that WCJ Spizer improperly shifted the burden to her to 

establish a reasonable contest, as evidenced by the WCJ’s conclusion that “Claimant has failed to 

meet her burden of proof to establish that the [Employer] acted unreasonably, which would justify 

any award of counsel fees for an unreasonable contest.” (Conclusion of Law No. 3.) Section 440(a) 

of the Act squarely places the burden on an employer to establish that its contest was reasonable. 
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with specific instruction to remand to the WCJ, for further findings consistent with this 

opinion. 

 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rosemarie Dymek, :

Petitioner :

: No. 1261 C.D. 2018

v. :

:

Workers’ Compensation Appeal :

Board (Harper & Row Keystone :

Employees FCU and Cumis :

Insurance Society, Inc.), :

Respondents :

ORDER

AND NOW, this 12th day of April, 2019, the order of the Workers’ 

Compensation Appeal Board (Board), to the extent that it affirmed the Workers’ 

Compensation Judge’s (WCJ) award of a 10% penalty to Rosemarie Dymek 

(Claimant), is affirmed. However, the order of the Board, to the extent that it 

affirmed the WCJ’s denial of Claimant’s counsel’s request for attorney fees and 

costs, is reversed. The matter is remanded to the Board, with specific instruction to 

remand to the WCJ, for further findings consistent with this opinion.

Jurisdiction relinquished. 

________________________________

PATRICIA A. McCULLOUGH, Judge