Evans v. Rookard, Inc.

PER CURIAM

In this workers’ compensation case, claimant seeks review of a Board decision which refused to honor the parties’ stipulation that, in the event that EBI was held to be responsible for the claim, it would pay claimant attorney fees of $700 for his attorney’s participation at the hearing. EBI cross-petitions, challenging the Board’s holding that it, and not Industrial Indemnity, is responsible for the claim.

We affirm on the cross-petition. The medical evidence persuades us that claimant’s knee condition is the responsibility of EBI as an aggravation of an earlier compensable injury and is not a new injury which would justify a shifting of responsibility to the subsequent employer.

EBI made the fees stipulation pending review by the Board on the question of responsibility, and stands by that stipulation. The Board reasoned that it was not bound because, as a matter of law, claimant would not be entitled to insurer-paid attorney fees in a case where the only issue is responsibility and claimant did not participate meaningfully in the hearing. Whether or not claimant would have been entitled to an award for his participation in the hearing under the pertinent law, EBI agreed that he did participate meaningfully and was entitled to attorney fees if he prevailed against it. It was not for the Board to question the parties’ agreement.

On petition, the Board order is amended to allow $700 in attorney fees at the Board level; affirmed on cross-petition.