Ramich Ex Rel. Ramich v. Workers' Compensation Appeal Board

734 A.2d 39, 1999 Pa. Commw. LEXIS 517

• Court: Commonwealth Court of Pennsylvania
• Decided: June 29, 1999
• Status: Published

Opinions

KELLEY, Judge.

Carol Ramich (Claimant) petitions for review of an order of the Workers’ Compensation Appeal Board (Board). The Board’s order reversed the workers’ compensation judge’s (WCJ) award of compensation benefits to Claimant’s son and reversed the WCJ’s award of attorney fees to Claimant. We affirm.

Claimant filed a fatal claim petition on November 4, 1994 on behalf of herself and her son. The petition alleged that Claimant’s husband, Alvin Ramich (Ramich), sustained injuries on March 6, 1994 while in the course and scope of his employment as a licensed electrician for Schatz Electric, Inc. (Employer). The injuries resulted in Ramich’s death on March 7, 1994. The death certificate indicated that Ra-mich died of asphyxiation while operating a gasoline generator at a job site.

By decision circulated January 29, 1996, the WCJ concluded that Claimant sustained her burden of proof on the fatal claim petition and awarded compensation benefits to Claimant and her son pursuant to section 307 of the Workers’ Compensation Act (Act).¹ In addition, the WCJ awarded funeral benefits pursuant to section 307(7) of the Act, 77 P.S. § 561(7), and attorney fees and costs pursuant to section 440(a) of the Act, 77 P.S. § 996(a), finding Employer’s contest of the fatal- claim petition to be unreasonable. Employer filed a timely appeal to the Board alleging that the WCJ’s findings of fact were not supported by substantial evidence and that the WCJ committed various errors of law. Employer’s appeal included a request for supersedeas.

The Board granted Employer’s request for supersedeas as to payment of workers’ compensation benefits to Claimant’s son by interlocutory order dated March 7, 1996. By opinion and order issued September 15, 1997, the Board concluded that Claimant failed to timely request attorney fees for an unreasonable contest pursuant to section 440(a) of the Act prior to the close of the record. The Board noted that the WCJ is precluded from assessing attorney fees sua sponte. Additionally, the Board declared that Claimant’s son is precluded from directly receiving workers’ compensation benefits under the Act because Claimant, as a widow, is primarily entitled to benefits. Claimant’s timely appeal to this Court followed.²

Claimant presents the following issues for our review: (1) whether the Board erred as a matter of law when it reversed the WCJ’s award of workers’ compensation benefits to Claimant’s son pursuant to section 307(1) of the Workers’ Compensation Act, 77 P.S. § 561(l)(a); and (2) whether the Board erred as a matter of law when it reversed the WCJ’s award of attorney fees for an unreasonable contest pursuant to section 440(a) of the Act because Claimant did not request the fees prior to the close of the record.

Initially, we note that there is no dispute over the award of workers’ compensation benefits to Claimant pursuant to section 307(3) of the Act, 77 P.S. § 561(3).³ This particular section of the Act applies directly to Claimant because she is the widow of the deceased worker and has one dependent child to support. Claimant, however, contends that in addition to these benefits, her son is eligible to receive workers’ compensation benefits pursuant to section 307(1)(a) of the Act, 77 P.S. § 561(1)(a). We disagree.

Section 307(l)(a) of the Act provides as follows:

1. If there he no widow nor widower entitled to compensation, compensation shall be paid to the guardian of the child or children, or, if there be no guardian, to such other persons as may be designated by the board as hereinafter provided as follows:

(a) If there be one child, thirty-two per centum of wages of deceased, but not in excess of the Statewide average weekly wage. (Emphasis added.)

The opening proviso of this section of the Act clearly prescribes that benefits are to be paid to a child or children “if there be no widow nor widower entitled to compensation.” Consequently, we are compelled to logically conclude that the provisions of section 307(l)(a) do not become effective unless there is no widow or widower entitled to compensation.⁴ As previously discussed, Claimant is a widow entitled to workers’ compensation benefits pursuant to section 307(3) of the Act. Therefore, Claimant’s son is not eligible for workers’ compensation benefits pursuant to section 307(l)(a) of the Act. See Anderson v. Borough of Greenville, 442 Pa. 11, 273 A.2d 512 (1971).

Next, Claimant challenges the Board’s reversal of the WCJ’s award of attorney fees for an unreasonable contest. Preliminarily, Claimant contends that Employer waived its appeal to the Board of the WCJ’s award of attorney fees because Employer failed to conform to the requirements of section 111.11(a)(2) of the Special Rules of Administrative Practice and Procedure before the Workers’ Compensation Appeal Board, 34 Pa.Code § 111.11(a)(2). This particular section of the Code requires that an appeal to the Board substantially contain:

A statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged. General allegations which do not specifically bring to the attention of the Board the issues decided are insufficient.

Based on our review of Employer’s appeal document, we conclude that Employer sufficiently notified the Board and Claimant of the issues it sought to have addressed on appeal. Specifically, the document cited the particular findings of fact, which Employer alleged to be in error or not supported by substantial evidence and noted the conclusions of law and the sections of the order, which were in error. See Garnett v. Workmen’s Compensation Appeal Board (Equitable Gas Co.), 158 Pa.Cmwlth. 100, 631 A.2d 705 (1993), petition for allowance of appeal denied, 537 Pa. 613, 641 A.2d 312 (1994). Moreover, Employer satisfied all of the other requirements set forth in 34 Pa.Code § 111.11.

We will now determine whether the Board committed legal error when it reversed the WCJ’s award of attorney fees to Claimant for Employer’s unreasonable contest of the claim. Here, Claimant requested attorney fees in the proposed findings of fact and memorandum of law she submitted to the WCJ. Claimant asserts that her request for attorney fees for an unreasonable contest after the close of the evidentiary record does not preclude her from invoking section 440(a) of the Act.⁵ In support of this proposition, Claimant cites Blunt Ltd. v. Workmen’s Compensation Appeal Board (Riley), 654 A.2d 253 (Pa. Cmwlth.1995).

In Blunt, the claimant requested attorney fees for an unreasonable contest in his proposed findings of fact, conclusions of law, and order. Blunt, 654 A.2d at 256. This Court held that this request by the claimant sufficiently placed the employer on notice that the claimant was seeking attorney fees for an unreasonable contest. Id. In doing so, this Court relied upon Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service), 140 Pa.Cmwlth. 51, 592 A.2d 358 (1991) and Edwards v. Workmen’s Compensation Appeal Board (R.C. Kadyk Corp.), 149 Pa.Cmwlth. 597, 613 A.2d 667 (1992) as support for this holding.

In Eugenie, the employer contended that the claimant’s request for attorney fees was ineffective since it was made after the referee⁶ closed the evidentiary record. Eugenie, 592 A.2d at 360. We pointed out that the record before this Court was sparse since no evidentiary hearings were held in the case. Id. We stated, however, that in a letter from the referee to the parties, dated October 25, 1988, the referee stated that the case was closed to evidence, that the claimant had already submitted a proposed order, and that the employer had until November 1, 1988, to submit proposed findings. Id. Therefore, we concluded that it was unclear whether the claimant’s request came before the evidentiary record was closed. Id. Thus, we held that, given the fact that no evidentiary hearings were held, the request for attorney fees was sufficient to put the employer on notice. Id.

In Edwards, we concluded that the claimant’s request for attorney fees in a brief submitted after the last hearing provided the employer with sufficient notice due to the abbreviated nature of the hearings. Edwards, 613 A.2d at 669. • After the initial hearing before the referee, the employer requested a continuance for the purpose of taking the deposition of the claimant’s former boss. Id. The employer later cancelled the deposition and the parties cancelled a subsequently scheduled hearing before the referee. Id. Based on the extenuating circumstances, we held that the claimant’s request for attorney fees in the brief to the referee after the hearings were concluded provided adequate notice to the employer to address the issue. Id.

Contrary to Claimant’s assertion in the present matter, this Court has held that a claimant’s failure to request attorney fees for an unreasonable contest prior to the close of the record negates any entitlement to the award. Mediq, Inc. v. Workmen’s Compensation Appeal Board (Steskal), 159 Pa.Cmwlth. 1, 633 A.2d 651 (1993).⁷ The reason behind this requirement is to give an employer the opportunity to present a defense by way of legal argument or countervailing evidence. Daugherty v. Workmen’s Compensation Appeal Board (Jones & Laughlin Steel Corp.), 97 Pa. Cmwlth. 142, 510 A.2d 147 (1986).

Considering Eugenie and Edwards in the light of these holdings, we conclude that those cases are exceptions to the established rule requiring a claimant to request attorney fees prior to the close of the evidentiary record. Moreover, we believe that Blunt is distinguishable from the present matter. In Blunt, there is no indication whether the request for an award of attorney fees was made before or after the close of the evidentiary record.⁸ As a result, we hold that Claimant is barred from requesting attorney fees for an unreasonable contest in this matter.

Here, the WCJ held three evidentiary hearings, which afforded Claimant a reasonable opportunity to request attorney fees for an unreasonable contest on the record.⁹ In addition, we note that the pendency of Claimant’s fatal claim petition lasted over fourteen months. By not raising the issue of the reasonableness of Employer’s contest prior to the close of the record, Claimant deprived Employer of the opportunity to present countervailing evidence and further legal argument on the reasonableness of the contest.

Based on the ample opportunity for Claimant to request attorney fees prior to the close of the evidentiary record, we affirm the Board’s reversal of the WCJ’s award of attorney fees to Claimant for an unreasonable contest.¹⁰ Accordingly, the order of the Board is affirmed.

Judge DOYLE concurs in result only.

ORDER

AND NOW, this 29th day of June, 1999, the order of the Workers’ Compensation Appeal Board, dated September 15, 1997, at No. A96-0543, is affirmed.

1 . Act of June 2, 1915, P.L.736, as amended, 77 P.S. §§ 561-562.

2 . This Court’s scope of review is limited to determining whether there has been a violation of constitutional rights, error of law committed, or a violation of appeal Board procedures, and whether necessary findings of fact are supported by substantial evidence. Le-high County Vo-Tech School v. Workmen’s Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).

3 . Section 307(3) of the Act provides workers’ compensation benefits to a widow or widower with one dependent child. The rate is based on sixty percent of the deceased workers’ final wages, but not in excess of the Statewide average weekly wage.

4 .We are well aware of the remedial nature of the Act and our duty to liberally construe it so as to effectuate its humanitarian purposes. See Harper & Collins v. Workmen's Compensation Appeal Board (Brown), 543 Pa. 484, 672 A.2d 1319 (1996). We are, however, limited by section 1921(b) of the Statutory Construction Act, 1 Pa.C.S. § 1921(b), which requires that when the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit.

5 . Section 440(a) of the Act, 77 P.S. § 996(a), provides:

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, agreements or other payment arrangements or to set aside final receipts, the employe 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 costs incurred for attorney fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer.

6 . Prior to August 31, 1993, workers’ compensation judges were called referees.

7 . In Mediq, the claimant argued that she made a timely request for attorney fees in the written memoranda of law she submitted to the referee after the evidentiary record was closed. Mediq, 633 A.2d at 654. In support of this argument, the claimant relied on Eugenie. Id. However, this Court determined that Eugenie was distinguishable because in Eugenie, there were no evidentiary hearings and it was unclear whether the claimant’s request came before or after the evidentiary record was closed. Id. We pointed out that in Mediq, the referee announced on the record and in the presence of counsel that the case was closed and instructed counsel to submit mem-oranda of law within a prescribed time. Id. It was in this memoranda that the claimant raised the issue of attorney fees for the first time. Id. Because the employer had lost all opportunity to present a defense by way of countervailing evidence and subsequent legal argument, we held that a first-time request for attorney fees in a post-trial memorandum failed to preserve such issue for appellate review. Id.

8 .We note that this Court in Blunt, when citing Eugenie as support for our holding, pointed out that it was unclear from the record in Eugenie whether the request for attorney fees came before or after the evidentiary record was closed. Blunt, 654 A.2d at 256 n. 5.

9 . The record indicates that hearings were held before the WCJ on January 12, 1995, April 6, 1995, and June 8, 1995.

10 . We also note that Section 131.55 of the Special Rules of Administrative Practice and Procedure Before Workers’ Compensation Judges, 34 Pa.Code § 131.55, entitled “Attorney fees and costs” is included under the hearing procedure before workers’ compensation judges.