Allied Chemical Co. v. Workmen's Compensation Appeal Board

Opinion by Judge Palladino, Allied Chemical Company (Employer) and Adam Witkowski.(Claimant) appeal from the Workmens Compensation Appeal Boards (Board) affirmance of a referees order which, inter alia, awarded counsel fees to Claimant for Employers unreasonable contest and awarded Employer a credit for payments it made to Claimant which were not pursuant to a Notice of Compensation Payable. Claimant filed a claim petition on April 28, 1980, alleging he had become totally disabled as of February 27, 1980 because of occupational lung disease.1 Employer answered the claim petition on May 13, 1980, demanding proof of all Claimants allegations. Four hearings were held, following which, on January 21, 1986, the referee issued his decision. The referee awarded total disability benefits to Claimant finding that Claimant had contracted occupational lung disease from his 25 years of employment with Employer. Claimants total disability is not disputed on appeal. However, the referee also awarded counsel fees as follows: 12. From February 27, 1980, when claimant became disabled, to February 7, 1983, when defendant commenced payments of partial disability compensation to claimant, the defendants contest of this claim petition was unreasonable because defendant was aware of claimants work-related exposures and resulting disability. However, after February 7, 1983, defendants contest was reasonable because it was relying on Dr. Atkinson’s opinion that claimant was able to perform light and sedentary work. — 254 — 13. The claim for unreasonable contest counsel fees made by claimant is hereby assessed at 20% of the partial disability compensation paid from February 27, 1980 to February 7, 1983, which sum for counsel fee [sic] shall be paid by defendant to claimants counsel in addition to any partial disability compensation paid during this period to the claimant. The referee also awarded Employer a credit for payments Employer had made to Claimant2 based on its acceptance of the fact that Claimant was at least partially disabled. On February 10, 1986, Employer appealed the referees decision to the Board. On February 24, 1986, Claimant appealed to the Board. Employer motioned to quash Claimants appeal to the Board as untimely because it was not within the 20 day period provided for in Section 423 of The Pennsylvania Workmens Compensation Act3 (Act). Review of the record discloses no decision from the Board on this motion. However, the Boards decision affirmed the referees decision, dismissed Employers appeal and dismissed Claimants appeal. In his appeal to this court, Claimant argues the Board erred in awarding Employer a credit for the payments it made voluntarily. Claimant asserts that those payments were not in accordance with the Act and are therefore not chargeable against Claimant. — 255 — Employer, in its appeal to this court, asserts the Board did not have jurisdiction to hear Claimants untimely appeal. Accordingly, Employer argues, because the issue was not properly before the Board, this court should not consider Claimants arguments. Employer also argues that the award of counsel fees was an error of law because there was a reasonable basis for contest throughout the proceedings. We will first address Employers argument that Claimants issue is not properly before this court. Section 423 of the Act, 77 P. S. §853, provides that any party has twenty days in which to appeal a referees decision. The mailing date of the referees decision is January 21, 1986. Employers appeal was docketed on February 10, 1986, within the 20 day period. Claimants appeal was docketed on February 24, 1986, clearly outside the 20 day period. The 20 day appeal period is jurisdictional. Fritz v. Workmen's Compensation Appeal Board (Kim Manufacturing Co., Inc.), 107 Pa. Commonwealth Ct. 168, 527 A.2d 636 (1987). In those rare cases where fraud or its equivalent is shown, appeal nunc pro tunc may be granted. Bardo v. Workmen's Compensation Appeal Board, 34 Pa. Commonwealth Ct. 322, 383 A.2d 570 (1978). Claimant does not assert any impropriety in the proceedings, but argues, quite persuasively, that the Board was correct in addressing the merits of his appeal. However, we are constrained to agree with Employer that the Board should have quashed Claimants appeal. Claimant argues first that a 30 day appeal period from the referees decision is mandated by 42 Pa. C.S.A. §5571(b) and the Pennsylvania Supreme Courts decision in Appeal of Chartiers Valley School District, 501 Pa. 620, 462 A.2d 673 (1983). Claimants argument is not persuasive. The authorities cited stand for the — 256 — proposition that appeals to courts must be within 30 days, regardless of contrary statutory provisions. See Chartiers Valley. An appeal to the Workmens Compensation Appeal Board is not an appeal to a court. Claimants next argument focuses on §423 of the Act, which provides that the Board may extend the appeal period “upon cause shown.” Claimant asserts that the Board must have extended the appeal period because it addressed his arguments on the merits. There is no indication that, the Board extended the time for appeal, and we cannot agree with Claimant that such an extension should be implied. Furthermore, such an extension by the Board would have been an error, inasmuch as the “cause” provision in Section 423 has been interpreted to mean fraud or its equivalent. Workmen's Compensation Appeal Board v. Gaines, 24 Pa. Commonwealth Ct. 307, 355 A.2d 595 (1976). However, Claimant asserts that the “cause” provision of Section 423, in conjunction with the policy of the Commonwealth to allow a cross-appeal within 14 days4 where one party appeals within 30 days, should govern our decision. Claimant attempts to surmount the jurisdictional bar by contending that Employers timely appeal vested jurisdiction of the case in the Board. Although we are well aware of the logic of allowing cross-appeals, we cannot agree that the legislature intended to provide for such a procedure in the Act. Where the words are clear and free from all ambiguity, we are not free to disregard the letter of a statute. The Statutory Construction Act of 1972, 1 Pa. C. S. §1921(b). Section 423 clearly provides that any party may appeal a referees decision within 20 days. There is nothing even remotely resembling a hint that the legislature intended to provide for a cross-appeal extension — 257 — of time. We may not disregard the language of the statute. Accordingly, because the Board should have quashed Claimants appeal because it was without jurisdiction to hear it, we will not address Claimants issues on appeal to this court. We turn now to Employers appeal of the award of counsel fees to Claimant.5 Section 440 of the Act, 77 P.S. §996, provides that a successful Claimant is entitled to an award of counsel fees unless a reasonable basis for the contest has been established. The reasonableness of an employers contest is a question of law subject to our review. Rettinger v. Workmen's Compensation Appeal Board (American Can Co.), 103 Pa. Commonwealth Ct. 595, 520 A.2d 1252 (1987). However, the legal conclusion of reasonableness is based on the facts as found by the referee. Ratchko v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 585, 377 A.2d 1012 (1977). Determination of whether a contest is reasonable is based on review of the record as a whole. Snyder v. Workmen's Compensation Appeal Board (U.S. Steel Corporation), 98 Pa. Commonwealth Ct. 62, 510 A.2d 899 (1986). Our review of the record in this case establishes that the award of counsel fees, as delineated in the referees findings of fact numbers 12 and 13, is supported by substantial evidence. The referees decision is thorough and clearly takes into consideration the circumstances of this particular case. We will not disturb that decision on appeal. Accordingly, the order of the Board is affirmed. — 258 — Order in 3371 C.D. 1986 And Now, April 6, 1988, the order of the Workmens Compensation Appeal Board appealed from in the above-captioned matter is affirmed. Order in 3447 C.D. 1986 And Now, April 6, 1988, the order of the Workmen’s Compensation Appeal Board appealed from in the above-captioned matter is affirmed. Footnotes [1] Specifically, Claimant alleged he suffered from obstructive lung disease and emphysema. [2] Employer paid Claimant an amount equal to $183.20 per week from February 27, 1980 up to February 7, 1983. Employer calculated the amount based on its computations of Claimants weekly wage while working for Employer and the amount Employer believed Claimant could earn at light and sedentary employment ($220.00 per week). The $183.20, therefore, constituted Employers calculation of a partial disability rate for Claimant. [3] Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §853. [4] See Pa. R.A.P. 903(b) and Pa. R.A.P. 1512(a)(2). [5] Our scope of review is limited to determining whether an error of law has been committed, findings of feet are supported by substantial evidence or constitutional rights have been violated. §704 of the Administrative Agency Law, 2 Pa. C. S. §704.