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Laurel Health Care Center6/19/2002
Laurel Health Care Center, Inc. (Employer) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Workers' Compensation Judge (WCJ) that granted Patricia A. Forsythe's (Claimant) penalty petition and found that Employer violated the Workers' Compensation Act (Act) when it failed to comply with the Board's December 23, 1998, order.
Claimant petitioned for penalties and alleged that Employer failed to pay continuing partial disability benefits. The WCJ agreed and ordered Employer to pay partial disability benefits from October 1, 1993, to pay ten per cent interest on all back due benefits, to deduct twenty percent from the past due benefits to pay directly to Claimant's counsel, to pay as a penalty an amount equal to fifty percent of the total amount of benefits and interest owed until the date of payment of back due benefits and interest, and to pay $1,589.50 to Claimant's counsel for attorney's fees because Employer did not have a reasonable basis to contest Claimant's petition. The Board affirmed.
Employer contends that the Board committed an error of law, first, when it affirmed the WCJ's determination that Employer's remedy was to file an appeal if it did not receive proper notification of the December 23, 1998, order, and, again, when it affirmed the WCJ's decision that Employer had no reasonable basis to contest the penalty petition.
The only order before this Court is the Board's order that affirmed the WCJ's award of interest and penalties. Employer's arguments do not directly address this order. Instead, Employer attacks the underlying December 23, 1998, order of the Board which modified the WCJ's decision and awarded Claimant continuing partial disability benefits from July 8, 1993, forward. The December 23, 1998, order is not before this Court. Employer has attempted to relitigate the issue of Claimant's entitlement to continuing partial disability benefits. This collateral attack is not permissible under the doctrine of res judicata. If Employer disagreed with the December 23, 1998, Order, it should have petitioned for review with this Court. Employer did not.
An employer violates Section 428 of the Act, 77 P.S. ยง921 when it does not commence payments within thirty days of the date on which its obligation to pay begins. Cunningham v. Workers' Compensation Appeal Board (Inglis House), 627 A.2d 218 (Pa. Cmwlth. 1993). A WCJ has discretion to award penalties for violations of the Act and attorney's fees for an unreasonable contest. This Court will not disturb the WCJ's discretion unless the WCJ committed an error of law or his determination is not supported by substantial evidence. Lakomy v. Workers' Compensation Appeal Board (Department of Environmental Resources), 720 A.2d 492 (Pa. Cmwlth. 1998). Here, there was an order in place which required Employer to pay partial disability benefits. The WCJ found that Employer did not comply with the order and violated the Act. This Court will not disturb the Board's order that affirmed the WCJ's imposition of penalties as well as attorney's fees for lack of reasonable contest.
Accordingly, we affirm.
BERNARD L. McGINLEY, Judge
ORDER
AND NOW, this 19th day of June, 2002, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
BERNARD L. McGINLEY, Judge
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