School District of Philadelphia v. Workers' Compensation Appeal Board

Submitted: August 14, 1998 BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Judge HONORABLE JESS S. JIULIANTE, Senior Judge The School District of Philadelphia (Employer) appeals from the January 21, 1998 order of the Workers' Compensation Appeal Board (WCAB) affirming, as modified, the January 22, 1996 decision of the Workers' Compensation Judge (WCJ) to grant Griffin Washington's (Claimant) penalty petition and to assess counsel fees against Employer under section 440 of the Workers' Compensation Act (Act).1 On October 18, 1991, Claimant sustained an injury while in the course and scope of his employment with Employer and received workers' compensation benefits pursuant to a notice of compensation payable. On June 23, 1994, Employer filed petitions to modify, suspend and terminate Claimant's benefits and requested a supersedeas. Claimant filed an answer denying the material allegations in Employer's petitions, and the petitions were assigned to WCJ Martin Burman. (WCJ's Findings of Fact, Nos. 1-2; WCAB's op. at 2.) On October 28, 1994, WCJ Burman entered an order denying Employer's request for a supersedeas and directing Employer to pay twenty percent of Claimant's workers' compensation benefits to Claimant's counsel as counsel fees. (WCJ's Findings of Fact, No. 3.) On January 9, 1995, Claimant filed a penalty petition alleging that Employer failed to pay the counsel fees as directed by the October 28, 1994 order. (WCJ's Findings of Fact, No. 4.) On January 11, 1995, Employer filed a timely answer denying the allegations in Claimant's penalty petition. (WCJ's Findings of Fact, No. 5.) By letter dated January 30, 1995, Employer withdrew its petition for modification.2 By letter dated February 9, 1995, Claimant requested a hearing on the reimbursement of costs and counsel fees pursuant to Employer's withdrawal of its modification petition and on Claimant's penalty petition. (WCJ's Findings of Fact, No. 6; O.R., Claimant's 2/9/95 letter.) At a hearing on June 27, 1995, Employer withdrew its suspension and termination petitions.3 (WCJ's Findings of Fact, No. 7.) Employer offered no evidence to support its filing of the petitions to modify, suspend and terminate Claimant's benefits. (WCJ's Findings of Fact, No. 9.) With respect to Claimant's penalty petition, Claimant offered into evidence a copy of a check dated January 20, 1995, representing the first time Employer paid counsel fees as directed by WCJ Burman's supersedeas order. Employer offered no explanation for its failure to pay counsel fees as directed from October 29, 1994 to January 19, 1995, and Employer offered no other evidence to support its contest of Claimant's penalty petition. (WCJ's Findings of Fact, Nos. 8-10.) At some point in these proceedings, the matter was reassigned to WCJ Ollie E. Arrington.4 In his January 22, 1996 decision, WCJ Arrington found that Employer failed to pay counsel fees as directed by the October 28, 1994 supersedeas order until January 20, 1995. Thus, WCJ Arrington ordered Employer to pay Claimant's counsel $859.64 in unpaid counsel fees and a twenty percent penalty of $171.93.5 WCJ Arrington also found that Employer failed to prove a reasonable basis for its modification, suspension and termination petitions and that Employer failed to establish a reasonable basis for its contest of Claimant's penalty petition. (WCJ's Findings of Fact, Nos. 11-15.) Thus, WCJ Arrington ordered Employer to pay Claimant's counsel twenty percent of Claimant's weekly compensation benefits as a cost for failing to present a reasonable contest on Claimant's penalty petition.6