Crouse v. Workers' Compensation Appeal Board6/26/2002
Wilbur Crouse (Claimant) petitions for review from the November 29, 2001 order of the Workers' Compensation Appeal Board (Board) that reaffirmed its November 22, 1999 order affirming, as modified, the order of Workers' Compensation Judge James Deely (WCJ). The Board's November 22, 1999 order affirmed the WCJ's order granting unreasonable contest fees; however, it modified the order to award fees for the closed period of June 14 through December 28, 1995. In this appeal, we are asked to consider whether an unreasonable contest may become reasonable at some later point in the proceedings and thereby end an employer's exposure to unreasonable contest fees for fees incurred after producing evidence sufficient to support a finding of reasonable contest. For the reasons that follow, we affirm the Board's order.
On June 28, 1995, Claimant filed a petition for workers' compensation benefits alleging that he injured his right shoulder and sustained pain in his neck, right shoulder, arm and hand on April 26, 1995 during the course of his employment with NPS Energy SVC (Employer). Employer filed a timely answer denying the material allegations of Claimant's petition.
The WCJ granted Claimant's petition and awarded him $509.00 per week in workers' compensation benefits. In his order, the WCJ found that Employer engaged in an unreasonable contest of Claimant's petition because Employer's expert medical witness did not examine Claimant until December 28, 1995, eight months after the work injury. (WCJ's January 23, 1997 decision, p.7) Accordingly, the WCJ ordered Employer to pay attorney's fees in the amount of $6,544.00, representing counsel fees incurred by Claimant from June 14, 1995 through September 13, 1996. (Original Record, Claimant's Exhibit 5)
Employer appealed to the Board, which affirmed the WCJ's award of benefits to Claimant. It modified, however, the WCJ's award of unreasonable contest fees. The Board reasoned that once Employer came into possession of medical evidence supporting its position, its contest of Claimant's petition became reasonable. Consequently, the Board held Employer responsible only for Claimant's attorney's fees incurred through December 28, 1995, the date that Employer's expert medical witness conducted an independent medical exam (IME) of Claimant.
Claimant now appeals to this Court contending that the Board erred in modifying the WCJ's award of unreasonable contest fees. Initially, we note that the employer bears the burden of presenting sufficient evidence to establish a reasonable basis for contesting a claim petition. Lemon v. Workers' Compensation Appeal Board (Mercy Nursing Connections), 742 A.2d 223 (Pa. Cmwlth. 1999), appeal denied, 562 Pa. 676, 753 A.2d 822 (2000). The existence of a reasonable contest is a question of law, based on the WCJ's findings of fact, and thus, fully reviewable by this Court. Id.
Employer maintains that its contest of the claim petition was reasonable since it produced conflicting medical testimony and Claimant's credibility was always at issue. Employer's position, however, disregards the fact that both the WCJ and the Board awarded unreasonable contest fees for the period of June 14 through December 28, 1995. (See WCJ's January 23, 1997 decision, p.7; Board's November 22, 1997 order, p.4) Despite its assertions, Employer failed to challenge that conclusion on appeal. Therefore, Employer cannot use its prior conduct, which was found to be unreasonable, to bolster its position that it did not engage in an unreasonable contest.
The issue, rather, is whether Employer's unreasonable contest of the claim petition became reasonable as of December 28, 1995 by virtue of the suppo
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