THISSEN v. W.C.A.B. (HALL’S MOTOR TR.), 137 Pa. Commw. 227 (1991)

585 A.2d 612

Commonwealth Court of Pennsylvania.Submitted November 16, 1990.
Decided January 11, 1991.

Appeal from the Workmen’s Compensation Appeal Board No. A-95907.

Page 228

Fred H. Hait, Griffie Associates, Carlisle, for petitioner.

Trudy H. McGraw, Post Schell, P.C., Harrisburg, for respondents.

Before PALLADINO and BYER, JJ., and BARBIERI, Senior Judge.

BARBIERI, Senior Judge.

Henry W. Thissen, Jr. (Claimant) seeks review of the order of the Workmen’s Compensation Appeal Board (Board) insofar as it reversed the referee’s award of counsel fees in favor of Claimant and against Hall’s Motor Transit (Employer) pursuant to Section 440 of The Pennsylvania

Page 229

Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P. S. § 996.[1] The sole issue presented for our consideration on review is whether the Board erred in reversing the referee’s finding of an unreasonable contest. We affirm.

Claimant, a truck driver for Employer, filed a claim petition for compensation alleging an aggravation of his pre-existing work-related back injury due to a change in his job duties; specifically, the inclusion of jockey work[2] in addition to his regular position as a city driver.[3] In response, Employer filed an answer denying liability.

Page 230

The referee, after hearing, accepted the testimony and opinion of Claimant’s medical witness, accurately characterizing it as follows:

Claimant’s medical witness, Dr. Frank S. Bryan, a Board certified orthopedic surgeon, who had treated claimant for his prior back injury and continued treating claimant after May 2, 1984 agreed that, while certain conditions applicable to jockeying, taken in isolation, may appear to make the job easier than city driving, such as, for example, power steering equipment on the jockey wagons, it nevertheless was the constant manuevering [sic] of the trailers, turning and twisting to see where you are going, shifting and braking for 8 hours a day that in the doctor’s unequivocal opinion aggravated claimant’s pre-existing back condition and that for the foreseeable future such activity should be avoided. . . .

Finding of Fact No. 14.[4] Based thereon, the referee found that Claimant suffered a work-related aggravation of his pre-existing back condition. Conclusion of Law No. 3. Because Employer refused to excuse Claimant from performing the jockey work and otherwise failed to establish the availability of suitable work, the referee further found Claimant entitled to compensation for total disability[5] , and upon concluding that Employer’s contest was unreasonable, the referee directed Employer to pay Claimant’s counsel fees. Findings of Fact Nos. 9-10; Conclusions of Law Nos. 4-5; 7/8/85 Order.

Page 231

Thereafter, Employer appealed the referee’s July 8, 1985 decision to the Board, challenging the finding of an unreasonable contest and award of counsel fees to Claimant. In the alternative, Employer requested a rehearing or remand based upon an alleged subsequent admission by Claimant that his disability was not work-related.[6] Because the Board granted Employer a rehearing and remanded the matter to the referee for purposes of taking additional evidence, the Board declined to address the issues raised by Employer’s appeal.

After further proceedings consistent with the Board’s directive, the referee reaffirmed the prior order of July 8, 1985, including the finding of an unreasonable contest and award of counsel fees to Claimant.[7] Upon receiving the referee’s decision on remand, Employer again appealed to the Board and also filed a separate petition for rehearing or remand not relevant to our disposition. In its appeal, Employer contended that the referee erred in finding no reasonable basis for its contest. The Board responded as follows:

The Defendant [Employer] also argues that . . . the Referee erred in finding no reasonable basis for the contest.

Page 232

The Referee based his decision on the lack of medical evidence.

. . . .

This . . . ignores the main basis for the defense, the credibility of the Claimant. Although the Referee ultimately found the Claimant to be credible, we believe that it was surely reasonable for the defense to challenge his credibility. We cannot conclude as a matter of law that the defense was undertaken merely to harass the Claimant; we find the defense to be reasonable.

Board’s Opinion, pp. 4-5.

Section 440 of the Act, 77 P. S. § 996, contemplates an award of counsel fees to a claimant, in whose favor the matter has been finally determined, unless the record demonstrates that the employer’s contest of liability was reasonably based. Jodon v. Workmen’s Compensation Appeal Board, 54 Pa. Commw. 246, 420 A.2d 1137 (1980). It is, of course, for the employer to establish such a reasonable basis. MacNeill v. Workmen’s Compensation Appeal Board (Denny’s, Inc.), 120 Pa. Commw. 320, 548 A.2d 680 (1988).

Whether or not there exists a reasonable basis for an employer’s contest of liability, although dependent upon both the facts and legal issues involved, is ultimately a question of law. Jodon. As such, it is within the Board’s power to reverse a referee’s conclusion as to whether or not a contest was reasonable and it is within our scope of review to examine the Board’s conclusion. Cleaver v. Workmen’s Compensation Appeal Board (Robert E. Wiley/Continental Food Service), 72 Pa. Commw. 487, 456 A.2d 1162 (1983).

Reasonableness of an employer’s contest depends on whether the contest was prompted to resolve a genuinely disputed issue or merely to harass the claimant. White v. Workmen’s Compensation Appeal Board (Gateway Coal Co.), 103 Pa. Commw. 397, 520 A.2d 555 (1987).

Page 233

“An issue of credibility is a legitimate and reasonable subject of inquiry and challenge,” Cleaver, 72 Pa. Commw. at 490, 456 A.2d at 1164, and where the evidence lends itself to contrary inferences, an employer’s contest may be adjudged reasonable. Landis v. Workmen’s Compensation Appeal Board, 43 Pa. Commw. 491, 402 A.2d 723 (1979).

Here, Employer asserts that Claimant’s credibility was an issue from the inception of this case and that there existed a genuinely disputed issue as to Claimant’s ability to perform city driving but not jockey work. Employer points to evidence of record consisting of its cross-examination of Claimant and Claimant’s medical witness as well as testimony of one of Claimant’s co-workers to support the reasonableness of its contest.

The evidence upon which Employer relies indicates that jockey work is less strenuous than city driving in some respects, N.T. 8/21/84, pp. 28-31, 44, 46-50, 54-55, and that jockey work is preferable to city driving to the extent that the jockey wagon is equipped with power steering and air seats. Dr. Bryan’s Deposition, pp. 16-18. In fact, Claimant’s co-worker testified that he preferred jockey work to city driving because it was “easier” and involved “less physical labor.” N.T. 8/21/84, pp. 49-50, 54-55. Particularly noteworthy is the following exchange between Employer’s counsel and Claimant’s physician:

Q. Doctor, would it be fair to say that your opinion with regard to Mr. Thissen’s performance of jockey work is in response to his subjective reaction to the performance of that work?

A. Yes.

Dr. Bryan’s Deposition, p. 23.

In our view, Claimant’s inability to perform jockey work, the central issue here, depended exclusively on Claimant’s credibility. Likewise, the medical opinion that Claimant could not perform such work derived from Claimant’s subjective reaction and, as such, also rested on Claimant’s credibility. Where a case depends solely on a claimant’s

Page 234

credibility, an employer is not required to retreat from contesting liability, Jodon, particularly when the employer, as here, also presents some evidence tending to cast doubt on Claimant’s credibility.

It goes without saying that the question before us is not whether the referee accepted Employer’s evidence but whether that evidence provided a reasonable basis for contesting the claim. Spatola Thompson v. Workmen’s Compensation Appeal Board, 43 Pa. Commw. 137, 401 A.2d 877 (1979). We conclude that it does inasmuch as Employer’s evidence can be reasonably viewed as raising a justifiable challenge to Claimant’s credibility on the issue of his capacity to perform city driving but not jockey work.

As recognized by the Board, the fact that Employer did not adduce medical evidence does not render Employer’s basis for contest unreasonable where Employer relied on its cross-examination of Claimant and Claimant’s medical witness as well as testimony of one of Claimant’s co-workers. See Cleaver; United States Steel Corp. v. Workmen’s Compensation Appeal Board, 55 Pa. Commw. 250, 422 A.2d 1243 (1980). In short, this is not a case where an employer failed to present any, or presented clearly insubstantial, evidence in furtherance of its defense. Accordingly, we find no error by the Board and will affirm its order.

ORDER
AND NOW, this 11th day of January, 1991, the order of the Workmen’s Compensation Appeal Board, dated June 21, 1990, at Docket No. A-95907, is affirmed.

Page 235