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McConaughey v. Workers' Compensation Appeal Board10/14/2005
Doloris J. McConaughey (Claimant) petitions for review of those portions of the October 28, 2004, order of the Workers' Compensation Appeal Board (WCAB) affirming the decision of a workers' compensation judge (WCJ) (1) to deny Claimant attorney's fees based on the determination that Advanced Glass Fiber Yarns, LLC (Employer) presented a reasonable contest and (2) to reduce the amount of attorney's fees requested by Claimant's attorney.
On December 5, 2001, Claimant tripped on a walnut and fell while walking across Employer's parking lot to her car after work. Claimant filed a claim petition on July 29, 2002, alleging that she injured her left wrist and left leg as a result of the fall. An initial hearing was held on September 11, 2002. On September 13, 2002, Employer filed a late answer denying Claimant's claim petition on the grounds that "Claimant's injury did not occur in the course and scope of her employment or related thereto." (WCJ's Findings of Fact, Nos. 1-2; Employer's Answer to Claim Petition, R.R. at 5a.)
At a hearing on January 22, 2003, Claimant testified that on the day in question she punched out at 3:00 p.m. and walked to her car. Claimant stated that at approximately 3:10 p.m., while walking across Employer's parking lot, she stepped on a walnut and twisted her ankle, causing her to fall to the ground and injure her left wrist and right knee. Claimant advised the company nurse of her injury that afternoon and made a formal report the next morning. On cross examination, when asked about her conversation with the company nurse, Claimant stated that she explained that she had been looking for a co-worker's car as she walked across the parking lot, but she had not deviated from the path to her car before she tripped and fell. (WCJ's Findings of Fact, Nos. 3-6; R.R. at 23a-25a, 30a-31a.)
In the closing discussion of the January 22, 2003, hearing, Employer's counsel stated:
t honestly had been my understanding that the events as originally divulged by the Claimant [to the company nurse] are not what I heard today. I'm not making any representations about that other than subjectively; I need to review what I just heard with [the company nurse] to determine if her recollection is consistent with that. If not, then I need to offer -- I need to gather some additional records before we can rest our case subject to what I heard today.
(WCJ's Findings of Fact, No. 8.) Subsequently, Claimant and Employer issued a stipulation and reached an agreement for compensation under which Employer accepted Claimant's claim. (WCJ's Findings of Fact, No. 9.)
The WCJ found the parties' stipulation and agreement for compensation to be fair and reasonable; however, the WCJ rejected Claimant's request for counsel fees based on an unreasonable contest. The WCJ concluded that Employer's contest was reasonable where Employer had consistently argued that Claimant deviated from the course and scope of her employment in a situation analogous to Pinn v. Workers' Compensation Appeal Board (Hemlock Girl Scout Council), 754 A.2d 40 (Pa. Cmwlth. 2000), appeal denied, 565 Pa. 658, 771 A.2d 1292 (2001), and accepted Claimant's claim only after Claimant clearly testified to the contrary. (WCJ's Conclusions of Law, No. 1.)
Claimant's counsel also submitted a quantum meruit fee statement to the WCJ providing for 20.20 hours of attorney time at a rate of $200.00 per hour. However, the WCJ found that $100.00 per hour, not $200.00 per hour, was reasonable where no evidence was submitted to support a higher rate and "considering that 9 of the 20.20 hours were travel hours." (WCJ's Findings of Fact, Nos. 9-13.)
Claimant appealed to t
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