            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jaime Martinez,                                :
                       Petitioner              :
                                               :
               v.                              :
                                               :
Workers’ Compensation Appeal                   :
Board (Silvi Corporation),                     :    No. 1016 C.D. 2016
                  Respondent                   :    Submitted: December 9, 2016



BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                   FILED: March 29, 2017

               Jaime Martinez (Claimant) petitions for review of a decision of the
Workers’ Compensation Appeal Board (Board) which affirmed a decision of the
Workers’ Compensation Judge (WCJ) marking a termination petition as
withdrawn.

               On July 8, 2015, Claimant sustained an injury compensable under the
Workers’ Compensation Act1 (Act) and described in the Notice of Compensation
Payable filed with the Board as a right wrist fracture. Claimant received benefits
of $845.83 per week based upon a weekly average wage of $1,268.75.



      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
            Claimant filed a Modification of the description of injury and Penalty
Petition on September 23, 2015.       (Respondent’s Amended Brief at 8).        On
November 10, 2015, Claimant gave a deposition in which he was questioned on the
nature of his injury and any restrictions or pain he was still experiencing. On
December 2, 2015, Claimant’s physician Dr. Didizian was deposed as to his
opinion on the status and extent of Claimant’s injury, and his opinion on whether
Claimant could return to work. (Reproduced Record (R.R.) at 55a-56a.)

            On December 7, 2015, Silvi Corporation (Employer) filed a
termination petition averring that Claimant had responded in bad faith to a specific
job offer. (R.R. at 1a.) On December 9, 2015, Employer’s counsel made a request
to the WCJ to withdraw the petition on the basis that it was filed by mistake, as
Employer had intended to file a suspension petition, not a termination petition.
(R.R. at 11a.) The WCJ issued an order dated that same day, marking the petition
withdrawn on motion of Employer’s counsel received via correspondence. Id.
Employer filed the correct suspension petition the same day. (R.R. at 20a.) No
answer was filed by the Claimant prior to the withdrawal of the termination
petition, nor was evidence entered into the record by either party. (Respondent’s
Amended Brief at 14-15.)

            On December 30, 2015, Claimant appealed the WCJ’s decision to the
Board, alleging that the WCJ had erred in withdrawing the termination petition
without determining if the contest was unreasonable, entitling claimant to recover
attorney’s fees. (R.R. at 12-a-13a.) The Board affirmed the decision of the WCJ
on June 9, 2016, finding that no contest had occurred, and thus no finding as to




                                         2
whether the contest was reasonable was necessary. (R.R. at 21a). Claimant now
appeals to this Court.2

                The sole issue presented to this Court is whether the WCJ erred when
she failed to determine whether the Employer’s contest was reasonable. Section
440(a)3 of the Act proves in pertinent part that “[i]n any contested case… including
contested cases involving petitions to terminate, reinstate, increase, reduce or
otherwise modify compensation awards… the employee or his dependent, as the
case may be, 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 the costs incurred for attorney’s fees… [p]rovided, that cost for
attorney fees may be excluded when a reasonable basis for the contest has been
established by the employer or the insurer.”

                It is well settled that in contested workers’ compensation cases, an
award of attorney’s fees to the claimant is the rule, and their exclusion the
exception, to be applied only in those cases where the record establishes that an
employer’s contest is reasonable. Cunningham v. Workers’ Compensation Appeal
Board (Franklin Steel Co.), 634 A.2d 267, 269 (Pa. Cmwlth. 1993). The burden is
on the employer to establish a reasonable basis for the contest. Wood v. Workers’
Compensation Appeal Board (Country Care Private Nursing), 915 A.2d 181, 187
(Pa. Cmwlth. 2007). A reasonable contest is established when there is conflicting

       2
          The Court’s scope of review is limited to determining whether findings of fact are
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Hartman v. Worker’s Compensation Appeal Board
(Moyer Packing Co.), 636 A.2d 1245, 1246 n.4 (Pa. Cmwlth. 1994).

       3
           Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S.
§996(a).

                                             3
evidence, or contradictory inferences therefrom.         Lemansky v. Workers’
Compensation Appeal Board (Hagan Ice Cream Company), 738 A.2d 498, 501
(Pa. Cmwlth. 1999). Whether an employer presents a reasonable basis for its
contest is a question of law fully reviewable by this Court. Boyer v. Workers’
Compensation Appeal Board (First Capital Insulation, Inc.), 740 A.2d 294, 296
(Pa. Cmwlth. 1999).

            Claimant contends the WCJ erred in failing to determine whether
there was a reasonable contest, and failing to give him an opportunity to present
evidence to that effect. The WCJ’s opinion consists of a single line and therefore,
Claimant argues, does not address the issue of whether the contest was reasonable.
Claimant submits he was not permitted to present evidence as to whether the
contest was reasonable, and was thus unable to request attorney’s fees as permitted
by Section 440 of the Act. Claimant argues that the WCJ failed to consider the fact
that the termination petition caused Claimant to incur counsel fees, and that the
WCJ should have made reviewable conclusions of law and determined if a
reasonable contest had been established by the Employer. Claimant points to his
deposition and that of Dr. Didizian as evidence he incurred attorney’s fees.
Claimant further alleges that Employer concealed, and WCJ failed to consider, that
Claimant had to prepare for and attend his deposition and the deposition of Dr.
Didizian, matters for which he should be permitted to request counsel fees for in
the event of an unreasonable contest.

            Employer responds that there was no need to establish the existence of
a reasonable or unreasonable contest, as there was no contest at all. WCJs and
reviewing courts “must look at the totality of the circumstances, since the
reasonableness of the contest may not necessarily depend on a conflict in evidence

                                        4
per se.” Majesky v. Workmen’s Compensation Appeal Board (Transit America,
Inc.), 595 A.2d 761, 764 (Pa. Cmwlth. 1991). Employer asserts the termination
petition was filed by mistake, and that this mistake was corrected when Employer
withdrew the termination petition and instead filed a suspension petition.
Employer argues that Claimant engaged in no specific preparation for litigation
stemming from the mistakenly filed petition and no answer or evidence was ever
filed. Therefore, the WCJ had no need for findings of fact or conclusions of law.
Further, Employer points out that the depositions of Claimant and Dr. Didizian
were taken before the termination petition was ever filed. In fact, Employer
argues, those depositions were taken and submitted into evidence in ongoing
litigation resulting from the filing of Claimant’s September 23, 2015 petition for
modification and penalty. Employer has also offered these depositions into
evidence in support of its correctly filed suspension petition.4

              Reviewing the totality of circumstances, it is clear that no contest
existed as Employer withdrew within forty-eight hours what was erroneously filed.
If there ever was a case of “no harm, no foul,” this is it.

              For these reasons, the decision of the Board is affirmed.




                                            ___________________________
                                            JOSEPH M. COSGROVE, Judge


       4
         It is worth noting that, as these depositions were offered as evidence in support of two
other petitions being considered by a WCJ, Claimant will have the opportunity to claim his
attorney’s fees relating to these depositions if he prevails in either.

                                               5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jaime Martinez,                      :
                  Petitioner         :
                                     :
           v.                        :
                                     :
Workers’ Compensation Appeal         :
Board (Silvi Corporation),           :   No. 1016 C.D. 2016
                  Respondent         :


                                 ORDER


           AND NOW, this 29th day of March, 2017, the order of the Workers’
Compensation Appeal Board is affirmed.




                                   ___________________________
                                   JOSEPH M. COSGROVE, Judge
