Opinion by
Judge Doyle,
This is an appeal by John T. Allums (Claimant) from an order of the Workmens Compensation Appeal Board (Board) that denied his petition for reconsideration which petition sought additional counsel fees pursuant to Section 440 of The Pennsylvania Workmens Compensation Act (Act),1 77 PS. §996, for work done by Claimants attorney in defending Claimant against an allegedly frivolous appeal by Westinghouse Electric Corp. (Employer).
Claimant suffered a compensable injury on January 14, 1977.2 In 1982, Employer filed a petition to modify benefits alleging a decrease in Claimants disability. Claimant hired an attorney to defend against this petition. A few days prior to the referees hearing, Employer withdrew its modification petition. Claimants attorney thereupon requested a hearing solely on the issue of at[446] torney fees under Section 440 of the Act.3 The hearing resulted in a referees determination that Claimants attorney was entitled to legal fees of $1,000.00 “to be paid by [Employer] because of the filing of the Modification Fetition and then withdrawing it.”
Employer appealed this order to the Board. Claimant cross-appealed on the basis that the referee erred in inadvertently omitting from his award an eighteen dollar fee for the cost of transcribing the testimony from the hearing. On his appeal form, Claimant also requested that additional legal fees be assessed against Employer for the work Claimants attorney was performing in defending Claimants case against the Employers “meritless appeal” from the award of counsel fees. The Board ordered a remand for purposes of correcting the eighteen dollar transcript bill omission (later paid upon stipulation without hearing) but denied Claimants request for additional legal fees, although it did uphold the $1,000.00 fee assessment granted by the referee for the work done by Claimants attorney in first preparing to defend the withdrawn modification petition.4
[447] Claimant petitioned the Board for reconsideration of the issue of the denial of additional legal fees for the work done by his attorney in defending him on appeal, which petition the Board ultimately denied on January 17, 1986. Specifically, the Board held, “Claimants counsel is entitled to have the defendant pay his fee under Section 440 of the Act which was ordered by this Board in our prior decision. We will not allow any additional counsel fees to be paid by the defendant in this case.” Because there was no cross-appeal by Employer, we need only decide whether the Board committed error in refusing Claimants request for additional legal fees. The $1,000 in counsel fees awarded to Claimant for an unreasonable contest under Section 440 of the Act is not an issue in this appeal.
Claimant, of course, asserts that the additional counsel fees are proper and should have been imposed. Employer disagrees and cites Weidner v. Workmen's Compensation Appeal Board, 497 Pa. 516, 442 A.2d 242 (1982) in support of its position.5 In Weidner (Pa.), a referee failed to make an award for counsel fees in his initial decision, denying the employers petition to terminate, but did order a suspension of benefits. The Claimant appealed specifically the issue of such fees and our Court in Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, 332 A.2d 885 (1975) (Weidner 1) remanded the matter, holding that the contest was unreasonable and that counsel fees [448] were proper.6 Upon remand, the referee awarded counsel fees in the amount of $3,750.00. Then, Employers insurance carrier appealed. A divided panel of our Court in Westinghouse Electric Corp. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 610, 399 A.2d 1178 (1979) (Weidner II) reversed the Board and disallowed the award of counsel fees. The basis for disallowing the fees was that Claimant Weidner had a contingent fee arrangement with his attorney whereby the attorney would receive twenty percent of any award, but if no award was made to Claimant, there would be no fee. Because the attorney merely resisted a suspension of benefits, Claimant actually received no additional award and therefore we held that the attorney was entitled to no fee under his contingent fee agreement with Claimant. In so doing, we specifically recog[449] nized that under Section 442 of the Act, 77 ES. §998, a claimant and his attorney can enter into an arrangement where no fee will be due unless certain circumstances occur. When such an agreement exists, we reasoned, no award may be made under Section 440. We further explained in Weidner II that Section 440 s purposes are to deter unreasonable contests of workmens compensation claims and to ensure that claimants who are successful in their litigation receive compensation undiminished by litigation costs. Thus, we reasoned in Weidner II that the claimants continuing receipt of benefits due to his resisting of the suspension petition did not, by the terms of his contract with his attorney, result in his compensation being diminished. Therefore, we held that an award of attorney fees was inappropriate.
The Supreme Court reversed this Courts Weidner II decision and held that counsel fees were proper, but only for the work the attorney did in securing the initial award, i.e., the $3,750 award for the work the attorney performed in representing the Claimant, not for the efforts the attorney expended in his attempt to obtain counsel fees. Thus, Weidner (Pa.) establishes that an attorney is only entitled to fees where the work he does is on behalf of the client’s interests, not his own.7
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Opinion by
Judge Doyle,
This is an appeal by John T. Allums (Claimant) from an order of the Workmens Compensation Appeal Board (Board) that denied his petition for reconsideration which petition sought additional counsel fees pursuant to Section 440 of The Pennsylvania Workmens Compensation Act (Act),1 77 PS. §996, for work done by Claimants attorney in defending Claimant against an allegedly frivolous appeal by Westinghouse Electric Corp. (Employer).
Claimant suffered a compensable injury on January 14, 1977.2 In 1982, Employer filed a petition to modify benefits alleging a decrease in Claimants disability. Claimant hired an attorney to defend against this petition. A few days prior to the referees hearing, Employer withdrew its modification petition. Claimants attorney thereupon requested a hearing solely on the issue of at[446] torney fees under Section 440 of the Act.3 The hearing resulted in a referees determination that Claimants attorney was entitled to legal fees of $1,000.00 “to be paid by [Employer] because of the filing of the Modification Fetition and then withdrawing it.”
Employer appealed this order to the Board. Claimant cross-appealed on the basis that the referee erred in inadvertently omitting from his award an eighteen dollar fee for the cost of transcribing the testimony from the hearing. On his appeal form, Claimant also requested that additional legal fees be assessed against Employer for the work Claimants attorney was performing in defending Claimants case against the Employers “meritless appeal” from the award of counsel fees. The Board ordered a remand for purposes of correcting the eighteen dollar transcript bill omission (later paid upon stipulation without hearing) but denied Claimants request for additional legal fees, although it did uphold the $1,000.00 fee assessment granted by the referee for the work done by Claimants attorney in first preparing to defend the withdrawn modification petition.4
[447] Claimant petitioned the Board for reconsideration of the issue of the denial of additional legal fees for the work done by his attorney in defending him on appeal, which petition the Board ultimately denied on January 17, 1986. Specifically, the Board held, “Claimants counsel is entitled to have the defendant pay his fee under Section 440 of the Act which was ordered by this Board in our prior decision. We will not allow any additional counsel fees to be paid by the defendant in this case.” Because there was no cross-appeal by Employer, we need only decide whether the Board committed error in refusing Claimants request for additional legal fees. The $1,000 in counsel fees awarded to Claimant for an unreasonable contest under Section 440 of the Act is not an issue in this appeal.
Claimant, of course, asserts that the additional counsel fees are proper and should have been imposed. Employer disagrees and cites Weidner v. Workmen's Compensation Appeal Board, 497 Pa. 516, 442 A.2d 242 (1982) in support of its position.5 In Weidner (Pa.), a referee failed to make an award for counsel fees in his initial decision, denying the employers petition to terminate, but did order a suspension of benefits. The Claimant appealed specifically the issue of such fees and our Court in Weidner v. Workmen's Compensation Appeal Board, 16 Pa. Commonwealth Ct. 561, 332 A.2d 885 (1975) (Weidner 1) remanded the matter, holding that the contest was unreasonable and that counsel fees [448] were proper.6 Upon remand, the referee awarded counsel fees in the amount of $3,750.00. Then, Employers insurance carrier appealed. A divided panel of our Court in Westinghouse Electric Corp. v. Workmen's Compensation Appeal Board, 41 Pa. Commonwealth Ct. 610, 399 A.2d 1178 (1979) (Weidner II) reversed the Board and disallowed the award of counsel fees. The basis for disallowing the fees was that Claimant Weidner had a contingent fee arrangement with his attorney whereby the attorney would receive twenty percent of any award, but if no award was made to Claimant, there would be no fee. Because the attorney merely resisted a suspension of benefits, Claimant actually received no additional award and therefore we held that the attorney was entitled to no fee under his contingent fee agreement with Claimant. In so doing, we specifically recog[449] nized that under Section 442 of the Act, 77 ES. §998, a claimant and his attorney can enter into an arrangement where no fee will be due unless certain circumstances occur. When such an agreement exists, we reasoned, no award may be made under Section 440. We further explained in Weidner II that Section 440 s purposes are to deter unreasonable contests of workmens compensation claims and to ensure that claimants who are successful in their litigation receive compensation undiminished by litigation costs. Thus, we reasoned in Weidner II that the claimants continuing receipt of benefits due to his resisting of the suspension petition did not, by the terms of his contract with his attorney, result in his compensation being diminished. Therefore, we held that an award of attorney fees was inappropriate.
The Supreme Court reversed this Courts Weidner II decision and held that counsel fees were proper, but only for the work the attorney did in securing the initial award, i.e., the $3,750 award for the work the attorney performed in representing the Claimant, not for the efforts the attorney expended in his attempt to obtain counsel fees. Thus, Weidner (Pa.) establishes that an attorney is only entitled to fees where the work he does is on behalf of the client’s interests, not his own.7
[450] What Weidner (Pa.) did not clearly decide was whether an employers appeal from an award of counsel fees under Section 440 of the Act makes additional counsel fees proper. Keeping in mind that the relevant inquiry is whether the work done by the attorney is on behalf of the claimants interests, it is our view that an award of counsel fees to an attorney defending against an employers appeal of an award of attorneys fees is permissible under Weidner (Pa.) in certain circumstances. In the instant case, the Claimants fee arrangement with his attorney was not upon a contingency basis. Therefore, if Claimant does not defend the award of fees on appeal and that award is reversed, the money to pay his attorney will come out of Claimants own pocket. In contrast, Weidner (Pa.) involved a contingency fee arrangement, and while the termination petition which Claimant resisted at first did endanger his own benefits, the appeal over counsel fees did not. Therefore, in Weidner (Pa.) the pursuit of counsel fees on appeal was done solely for the benefit of counsel, since claimant qua claimant had nothing to lose if the award of counsel fees was ultimately reversed on appeal. Thus, Weidner (Pa.) is distinguishable from the case at bar. Accordingly, we hold that the attorney here is entitled to an award of attorneys fees under Section 440, and we will remand [451] for findings on the amount due and entry of an appropriate order by the Board.
Finally, Claimant asks that we direct the Board to grant him attorneys fees for appeal to this Court. This would entail an examination of the underlying factual arrangement and agreement as to counsel fees on appeal before this Court. Therefore, it should be addressed by the Board and the referee on remand in the same manner and to the same extent as is warranted in establishing attorneys fees for counsels work in defending the appeal before the Board.
Based upon the foregoing discussion, the order of the Board is reversed and the case is remanded for computation of attorneys fees due Claimant.8
Order
Now, October 27, 1987, the order of the Workmens Compensation Appeal Board in the above captioned matter is hereby reversed and the case is remanded for computation of attorney fees due Claimant. Should additional evidence with respect to the amount of attorneys fees due be necessary the Board is authorized to conduct further hearings.
Jurisdiction relinquished.