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Wallace v. Workers' Compensation Appeal Board9/12/2005
under no obligation to resume the payment of benefits upon lay off because he was not laid off from a modified-duty position. Klarich. Claimant's benefits remained suspended until September 19, 2002 when they were ordered terminated by the WCJ. Thus, the Board did not err in ordering Employer to reinstate Claimant's workers' compensation benefits for the 2001 back injury.
In his second argument on appeal, Claimant suggests that the Board erred in failing to remand this matter to the WCJ for the imposition of penalties upon its determination that Employer was in violation of the Act by its failure to reinstate the payment of benefits pursuant to the 1995 supplemental agreement and the 2001 NCP. We disagree.
With regard to the 1994 neck injury, quite simply, Claimant failed to file a petition for penalties. Our review of the certified record indicates that a penalty petition was filed on March 15, 2002 and that it lists an injury date of March 23, 2001. It does not refer to Claimant's April 4, 1994 injury. Consequently, Claimant is not entitled to penalties based on Employer's failure to reinstate benefits for the 1994 injury where Claimant failed to file a petition for penalties on that basis.
As for Claimant's 2001 back injury, we note that Section 435(d)(i) of the Act, 77 P.S. § 991(d)(1), provides that employers and insurers may be penalized in a sum not to exceed 10% of the amount awarded for violations of the Act or the Board's regulations. In Jaskiewicz v. Workmen's Compensation Appeal Board, 651 A.2d 623 (Pa. Cmwlth. 1994), we determined that where no compensation is awarded by the WCJ, penalties cannot be awarded even if there is a violation of the Act. In this case, the WCJ suspended and thereafter terminated Claimant's benefits related to the 2001 back injury. Because Claimant was not awarded compensation, a penalty was not warranted.
In his final argument, Claimant contends that the Board erred in failing to address the reasonableness of Employer's contest on his penalty and reinstatement petitions. Section 440(a) of the Act, 77 P.S. § 996(a), generally provides that counsel fees are to be awarded in any contested action where the matter is finally determined in favor of the claimant in whole or in part. Claimant, however, was not successful on either his penalty or reinstatement petitions and, therefore, is not entitled to an award of counsel fees. 77 P.S. § 996(a); Mason v. Workmen's Compensation Appeal Board (Hilti Fastening Sys. Corp.), 657 A.2d 1020 (Pa. Cmwlth. 1995)(claimant who did not prevail in proceedings before WCJ was not entitled to an award of attorney's fees).
Employer's Appeal
Employer raises the following issues for our review: whether the Board erred in (1) concluding that the WCJ's order granting Employer's termination/suspension petition did not apply to Claimant's 1994 neck injury; and (2) dismissing as moot Claimant's reinstatement petition for the 1994 neck injury and concluding that Claimant is entitled to ongoing benefits.
In its July 28, 2004 order affirming the WCJ's determination, the Board wrote the following in regard to Claimant's 1994 neck injury: Claimant raises a number of arguments relating to a 1994 work injury to his neck. The record reveals that [Employer] issued a acknowledging that Claimant sustained a work-related neck injury on April 4, 1994 and that, on May 11, 1994, Claimant executed a Final Receipt agreeing to the termination of his benefits for this injury. The record also reveals that the parties executed a Supplemental Agreement reinstating Claimant's total disability benefits for his 1994 [injury] effective September 7, 1995. However, none of the Petitions presently
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