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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thomas D'Angelo, : Petitioner : : v. : No. 2305 C.D. 2004 : Submitted: February 18, 2005 Workers' Compensation Appeal : Board (J.C. Lindstrom & Co.), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: March 29, 2005 Thomas D'Angelo (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated September 24, 2004, affirming an order of a Workers' Compensation Judge (WCJ), which denied Petitioner's request for unreasonable contest attorney's fees. We now affirm the order of the Board. J.C. Lindstrom & Co. (Employer) employed Claimant as an iron worker. In the course and scope of his employment on June 22, 1990, Claimant sustained injuries to his right hip and back when he fell one and one-half stories from a beam on which he was standing. Claimant received total disability benefits pursuant to a notice of compensation payable issued by Employer which described Claimant's injuries as "right hip and lumbar strain." Claimant subsequently required right hip replacement surgery. Employer initially denied liability for this surgery, alleging that Claimant suffered from a pre-existing condition known as Legg-Perthes disease in his right hip. Claimant thereafter filed a claim petition seeking payment of medical bills relating to his right hip. Following an independent medical examination, the parties executed a supplemental agreement on July 22, 1993, wherein Employer "agreed to accept liability for hip replacement-related medical bills and will continue to remain liable for all bills related to claimant's ongoing treatment to his right hip." (R.R. at 3a). As part of this agreement, Claimant agreed to withdraw his claim petition. Employer subsequently paid for two hip-replacement surgeries, as well as a required back surgery. Later in 1996, Claimant incurred further medical bills relating to his right hip and sought payment from Employer. However, Employer refused to pay any further expenses relating to the care and treatment of Claimant's right hip. Employer again alleged that these expenses were not causally related to Claimant's original work injury, but instead were related to Claimant's pre-existing condition. Claimant thereafter filed another claim petition seeking payment of said medical expenses. Employer filed an answer denying the material allegations of Claimant's petition. The case proceeded with hearings before the WCJ. At the hearings, Claimant submitted his current unpaid medical bills and a copy of the July 22, 1993, supplemental agreement executed between the parties. Claimant presented no medical evidence in support of his petition. In opposition to Claimant's petition, Employer presented two medical reports from Dr. John R. Duda, a board-certified orthopedic surgeon. In his first report, dated November 14, 1996, Dr. Duda opined that Claimant did not need any formalized intervention at that time. Dr. Duda also opined that Claimant's 2 treatment and surgeries through November of 1996 were likely secondary to his underlying childhood condition of Legg-Perthes disease and were probably unrelated to his original work injury. In a later report dated January 30, 1998, Dr. Duda opined that any current or future treatment or surgery to Claimant's right hip would be unrelated to his original work injury. Ultimately, the WCJ issued a decision denying Claimant's claim petition. The WCJ found that any medical bills Claimant incurred on or after December 18, 1996, were not causally related to Claimant's original work injury. In so finding, the WCJ accepted the medical reports of Dr. Duda as credible. The WCJ noted that the notice of compensation payable issued by Employer described Claimant's injury as a right hip "strain" and that Claimant submitted no medical evidence establishing a causal relationship between the medical treatment he received and his original work injury. Claimant appealed to the Board and the Board affirmed. Claimant filed a petition for review1 with this Court on January 7, 2000, arguing that the Board erred in affirming the decision of the WCJ because the decision was not supported by substantial, competent evidence. By opinion and order dated April 20, 2000, this Court reversed the Board and remanded the matter to the Board with specific instructions to remand the matter to the WCJ for further findings consistent with the opinion. In reaching that determination, we noted that when the parties executed the supplemental agreement on July 22, 1993, Employer "agreed to accept liability for hip replacement-related medical bills and will continue to remain liable for all bills related to Claimant's ongoing treatment to his right hip." 1 This petition for review was docketed as 38 C.D. 2000. 3 (R.R. at 3a). Hence, Employer admitted liability for ongoing medical expenses relating to Claimant's right hip. In addition, we opined that the opinions expressed by Dr. Duda were premised upon his errant belief and/or assumption that all of Claimant's prior treatments and surgeries were unrelated to his original work injury. In fact, Dr. Duda specifically opined in his earlier report that Claimant's treatment and surgeries through November of 1996 were likely secondary to his underlying childhood condition of Legg-Perthes disease and were probably unrelated to his original work injury. We concluded that this opinion was contrary to the admitted facts of record, i.e., the work-relatedness of Claimant's initial disability. As we had previously held that such an opinion is valueless and not competent, we further concluded that the WCJ's decision in the matter was not supported by substantial, competent evidence. See City of Butler v. Workers' Compensation Appeal Board (Botsis), 708 A.2d 1306 (Pa. Cmwlth. 1998); AT&T v. Workers' Compensation Appeal Board (Hernandez), 707 A.2d 649 (Pa. Cmwlth. 1998); Noverati v. Workmen's Compensation Appeal Board (Newtown Squire Inn), 686 A.2d 455 (Pa. Cmwlth. 1996). Consistent with the Court's order dated April 20, 2000, the case was remanded by the Board to the WCJ. The WCJ considered the issue of whether Claimant was entitled to unreasonable contest fees. By decision and order dated November 21, 2003, the WCJ denied Claimant's claim for unreasonable contest fees. Claimant appealed the matter to the Board. By opinion and order dated September 24, 2004, the Board affirmed the WCJ's order. Claimant filed another petition for review with this Court. It is this petition for review that is now before this Court. 4 On appeal,2 Claimant argues that the WCJ committed reversible error in denying unreasonable contest fees when Employer's only evidence in support of the contest was contrary to the established facts, the contest could not have been prompted to resolve a genuinely disputed issue, and Employer's failure to pay medical benefits subsequent to the supplemental agreement constituted a violation of the Workers' Compensation Act.3 When a claimant succeeds in litigating a case against an employer for workers' compensation benefits, reasonable counsel fees are awarded against the employer as a cost under Section 440 of the Act, 77 P.S. §996, unless the employer can establish that it engaged in a reasonable contest. See Weiss v. Workmen's Compensation Appeal Board (Birch), 526 A.2d 839 (Pa. Cmwlth. 1987), petition for allowance of appeal denied, 517 Pa. 612, 536 A.2d 1335 (1987). As a result, the employer bears the burden of establishing facts sufficient to prove a reasonable contest. Weiss. The reasonableness of an employer's contest and a claimant's right to attorney's fees depend on whether the contest was prompted to resolve a genuinely disputed issue or merely to harass the claimant. McGuire v. Workmen's Compensation Appeal Board (H.B. Deviney Co.), 591 A.2d 372 (Pa. Cmwlth. 1991). A reasonable contest may be found where medical evidence is conflicting 2 Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. We acknowledge our Supreme Court's decision in Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), wherein the Court held that "review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court." Wintermyer, 571 Pa. at 203, 812 A.2d at 487. 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4; 2501-2626. 5 or susceptible to contrary inferences and there is an absence of frivolous or harassing behavior on the part of the employer. See North Philadelphia Aviation Center v. Workmen's Compensation Appeal Board (Regan), 551 A.2d 609 (Pa. Cmwlth. 1998). The existence of a reasonable contest is a conclusion of law, fully reviewable on appeal. Varghese v. Workmen's Compensation Appeal Board (City of Philadelphia), 682 A.2d 443 (Pa. Cmwlth. 1996). In the case at hand, we agree with the WCJ and the Board that employer has met its burden to establish that the contest was prompted to resolve a genuinely disputed issue. Employer presented medical evidence that suggested that the treatments at issue were not related to the work injury, and Claimant presented no medical testimony to the contrary. The WCJ and Board both agreed with Employer's medical expert on this issue. We reversed the Board on the basis that it failed to appreciate the effect of the supplemental agreement of the parties as establishing the work-relatedness of the injury, and, therefore, it erred when it failed to conclude that the testimony of employer's expert witness was contrary to facts established by the supplemental agreement. Also, the record is devoid of any evidence that suggests that Employer engaged in the contest merely in an attempt to harass Claimant. Under these circumstances, we must conclude that the WCJ and Board did not err in concluding that Employer's contest was reasonable. Accordingly, the order of the Board is affirmed. JOSEPH F. McCLOSKEY, Senior Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Thomas D'Angelo, : Petitioner : : v. : No. 2305 C.D. 2004 : Workers' Compensation Appeal : Board (J.C. Lindstrom & Co.), : Respondent : O R D E R AND NOW, this 29th day of March, 2005, the order of the Workers' Compensation Appeal Board, dated September 24, 2004, is affirmed. JOSEPH F. McCLOSKEY, Senior Judge
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