           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Daniels,                             :
                            Petitioner       :
                                             :
                     v.                      :   No. 1299 C.D. 2015
                                             :   SUBMITTED: November 20, 2015
Workers’ Compensation Appeal                 :
Board (Giancarli Construction Co.),          :
                        Respondent           :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                 FILED: February 4, 2016


              Claimant Charles Daniels petitions for review of an order of the
Workers’ Compensation Appeal Board that affirmed a decision of a Workers’
Compensation Judge (WCJ), on remand, determining that litigation expenses in the
amount of $2665 for the October 19, 2011 deposition of Claimant’s medical
expert, Maurice Singer, D.O., should not have been included in the reimbursement
paid to Claimant’s law firm pursuant to Section 440(a) of the Workers’




    1
     This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
Compensation Act (Act),2 77 P.S. § 996(a), and, therefore, ordering that Employer
was entitled to a reimbursement of that cost. We affirm.
              In April 2010, Claimant was employed as a laborer for Employer
Giancarli Construction Company, earning $23.85 per hour and working forty hours
per week, when a support beam fell on his left foot and he sustained a work injury.
Initially, Employer issued a medical-only notice of temporary compensation
payable describing the injury as a left foot contusion. In May 2010, Claimant filed
a claim petition alleging a work-related injury in the nature of a fractured left foot.
In June 2010, Employer issued a notice stopping temporary compensation and a
notice of workers’ compensation denial alleging that Claimant did not sustain a
work-related injury.       Subsequently, Employer filed a termination petition in
December 2010, alleging that Claimant had fully recovered from any work injury
as of December 1, 2010. In February 2011, Claimant filed a review petition,
seeking to amend the injury description to include ankle and lower back pain. The
petitions were consolidated for hearing.
              In December 2011, the WCJ determined that Claimant sustained a
strain and sprain of his left ankle, with synovitis, and granted Claimant’s claim
petition. The WCJ also granted Claimant’s review petition with respect to the
allegation of ankle pain, but denied it with respect to the allegation of low back
pain. Further, concluding that Claimant was disabled only for the closed period of
April 7, 2010 to December 1, 2010, the WCJ granted Employer’s termination
petition as of December 1, 2010.            Finally, the WCJ ordered that Employer



    2
     Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25,
as amended.



                                              2
reimburse Claimant’s counsel for litigation costs in the amount of $5963.30. Both
parties appealed.
              In October 2013, the Board affirmed the WCJ’s decision on the
merits, but vacated it, in part, based on its determination that Claimant was entitled
only to reimbursement for litigation costs incurred for prosecuting or defending
winning issues. Accordingly, noting that Claimant’s bill of costs was not part of
the record and that, therefore, it could not determine whether the $5963.30 in
litigation costs awarded included the cost of Dr. Singer’s second deposition, the
Board remanded the matter for the WCJ 1) to make a determination as to whether
the cost of that deposition was incurred on the prevailing issues or the losing
issues; and 2) to make an award consistent with that determination. In support, it
cited Jones v. Workers’ Compensation Appeal Board (Steris Corporation), 874
A.2d 717, 721 (Pa. Cmwlth. 2005), holding that “a claimant must prevail on the
contested issue in order to be awarded litigation costs.”
              On remand, the WCJ determined that Dr. Singer in his October 2011
deposition addressed issues on which Claimant did not prevail, such as the
attempted addition of a back injury in Claimant’s review petition and the alleged
full recovery issue in Employer’s termination petition. Accordingly, the WCJ in
his July 2014 decision concluded that Employer was entitled to a reimbursement in
the amount of $2665,3 but reaffirmed his December 2011 decision and order in all
other respects. The Board affirmed, citing Barrett v. Workers’ Compensation
Appeal Board (Sunoco, Inc.), 987 A.2d 1280 (Pa. Cmwlth. 2010), in support of its
conclusion that “[d]isgorgement of litigation costs by a claimant’s attorney may be

    3
     The witness fee for Dr. Singer’s second deposition was $2500 and the transcript cost was
$165. ($2500 + 165 = $2665)



                                             3
ordered by a WCJ.” Board’s July 8, 2015 Decision at 4. Claimant raises two
issues on appeal: 1) whether the WCJ erred in failing to award him certain
litigation costs in accordance with Section 440(a) of the Act where he successfully
litigated his petition, in part; and 2) whether the Board erred in affirming the
WCJ’s order directing Claimant’s counsel to reimburse Employer for those costs,
where the WCJ and the Board allegedly lacked jurisdiction to do so.
                Section 440(a) of the Act permits an award of reasonable litigation
costs to a claimant when a matter at issue has been finally determined, in whole or
in part, in his favor.4 At issue in the present case are the litigation costs for Dr.
Singer’s second deposition.            Claimant deposed Dr. Singer a second time for
purposes of rebutting the testimony of Employer’s medical expert, John R. Duda,
M.D. In that regard, Claimant’s counsel stated at the beginning of Dr. Singer’s
second deposition that the purpose was “to take his opinions as to an IME
deposition of Dr. John R. Duda whose report and deposition occurred after Dr.
Singer testified on January 26, 2011.” Dr. Singer’s October 19, 2011 Deposition,
Notes of Testimony (N.T.) at 5. She indicated, therefore, that she would be
limiting her questions to Dr. Duda’s report and Dr. Singer’s opinions regarding
that report. In response, Employer’s counsel stated that, during a conference call,
the WCJ “admonished both counsel that he expects this to be a pure rebuttal

   4
       Section 440(a), in pertinent part, provides:
                         (a) In any contested case where the insurer has contested
                liability in whole or in part, including contested cases involving
                petitions to terminate, reinstate, increase, reduce or otherwise
                modify compensation awards, … the employe … in whose favor
                the matter at issue has been finally determined in whole or in part
                shall be awarded, in addition to the award for compensation, a
                reasonable sum for costs incurred for attorney’s fee, witnesses,
                necessary medical examination ….



                                                  4
deposition and that’s about it and as long as - - and I objected to the doctor’s dep,
but the [WCJ] overruled me. So, we’re here limited to the purposes you said.” Id.
at 5-6. Claimant’s counsel agreed with her opposing counsel’s summary of the
limited purpose of the deposition. Id. at 6. See also WCJ’s December 9, 2011
Decision, Finding of Fact (F.F.) No. 13.
              In any event, the WCJ accepted Dr. Duda’s opinions that Claimant
had fully recovered, that he did not sustain a work-related back injury and that he
did not have complex regional pain syndrome. The WCJ rejected Dr. Singer’s
opinions that Claimant had not fully recovered from his work injury and his
diagnoses regarding Claimant’s back. Id., F.F. No. 21. Accordingly, Claimant did
not prevail on the contested issues for which Dr. Singer testified in his second
deposition.
              Moreover, we conclude that the WCJ and the Board, respectively, had
jurisdiction to make and to affirm the reimbursement of the litigation costs for Dr.
Singer’s second deposition. Barrett, 987 A.2d at 1290 (holding that, where an
employer made an overpayment of litigation costs for a deposition, a claimant
could be ordered to refund that overpayment). As Employer emphasizes, the WCJ
ordered the reimbursement of litigation costs, not workers’ compensation benefits.
Accordingly, where, as here, the costs attributable to the unsuccessful issues could
be segregated, the Board did not err in affirming the WCJ’s order directing that
Claimant’s counsel reimburse Employer for litigation costs in the amount of
$2665.
              Accordingly, we affirm.

                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge


                                           5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Daniels,                        :
                        Petitioner      :
                                        :
                   v.                   :     No. 1299 C.D. 2015
                                        :
Workers’ Compensation Appeal            :
Board (Giancarli Construction Co.),     :
                        Respondent      :


                                     ORDER


            AND NOW, this 4th day of February, 2016, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
