Farquhar v. Workmen's Compensation Appeal Board , 515 Pa. 315 ( 1987 )

FLAHERTY, Justice,

concurring and dissenting.

I agree that appellant-claimant’s workmen’s compensation benefits should, on this record, be reinstated. Thus, I concur in the mandate of reversal and remand for entry of an appropriate order. I would not however, remand for a determination of the reasonableness of appellee’s contest of the matter. The reasonableness of the contest is a question of law, Herre Bros., Inc. v. W.C.A.B. (Mumma), 75 Pa. Commonwealth Ct. 499, 502, 462 A.2d 907, 908 (1983); Hartman v. W.C.A.B., 17 Commonwealth Ct. 609, 614, 333 A.2d 819, 822 (1975); and certainly one which we are competent to determine on appeal.

Although, in my view, the record is adequate to determine, as a matter of law, the reasonableness of the contest, as all the lower tribunals had before them the same deposition testimony and all interpreted it in the same fashion and favorably to appellee, and this supplies an adequate basis to conclude that appellee’s persistent refusal to pay compensation, though ultimately determined to have been erroneous, was neither capricious nor, in the language of Section 440, 77 P.S. § 996, “unreasonable,” Section 440 does seem to provide that, even where a reasonable basis for the contest is established, a successful claimant may be awarded attorney’s fees. This award is in the sound discretion of the referee. As this is the first stage of the proceedings where claimant has prevailed, and the referee has not previously had a chance to consider the propriety of an award of attorney’s fees, I would, thus, remand to the referee for a prompt determination of this question.

ZAPPALA and PAPADAKOS, JJ., join this concurring and dissenting opinion.