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Department of Environmental Resources v. Workers' Compensation Appeal Board2/8/2002
Submitted: December 28, 2001
OPINION NOT REPORTED
The Department of Environmental Resources (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the Workers' Compensation Judge's (WCJ) order on remand awarding 20 percent in penalties against Employer for violating Section 430 of the Workers' Compensation Act (Act).
In Lakomy v. Workers' Compensation Appeal Board (Dept. of Environmental Resources), 720 A.2d 492 (Pa. Cmwlth. 1998) (Lakomy 1), we found that the WCJ improperly failed to impose penalties against Employer for violations of Section 430(b) of the Act and remanded the case to the WCJ "for calculation of penalty." In that decision, we specifically recognized the discretion of the WCJ in determining the amount of the award stating:
Even where, as here, a violation of the Act has occurred, that does not mean that an award of penalties is mandated. In such circumstances, the imposition of a penalty is not required but is left to the sound discretion of the WCJ to determine if extenuating circumstances justify the violation. Moore v. Workmen's Compensation Appeal Board (Reading Paperboard Corp.), 676 A.2d 690 (Pa. Cmwlth. 1996); Oritz v. Workmen's Compensation Appeal Board (Fair Tex Mills, Inc.), 518 A.2d 1305 (Pa. Cmwlth. 1986).
Employer contends that the WCJ misconstrued our order as compelling her to award the maximum 20 percent penalty against Employer.
However, nothing in the WCJ's opinion indicated that she believed our remand order took away the normal discretion a WCJ has to determine the amount of a penalty. In her opinion, the WCJ initially stated that " his case is before me on remand for the sole purpose of setting a penalty amount." The WCJ then went on to find that "it appears that an 'unreasonable or excessive' delay is the primary violation on which the March 13, 1998 penalty is based." As a result of that conclusion, the WCJ then imposed a penalty of 20 percent of the award. While the WCJ noted that she was "compelled" to award the penalty, this statement does not imply that she felt the Commonwealth Court compelled her to impose a 20 percent penalty, but rather that she felt compelled by the law and lack of relevant extenuating circumstances to impose the penalty.
Accordingly, because the WCJ did not misconstrue the meaning of our previous order, the decision of the Board is affirmed.
DAN PELLEGRINI, JUDGE
ORDER
AND NOW, this 8th day of February, 2002, the order of the Workers' Compensation Appeal Board, No. A99-3742, dated June 8, 2001, is affirmed.
DAN PELLEGRINI, JUDGE
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