The opinion
PELLEGRINI, Judge,
dissenting.
I respectfully dissent. The majority affirms the Referee’s reduction in counsel fees to be paid by the Employer because of an unreasonable contest from $1,955.10, which was equal to 20% of the benefits received by the Claimant from when he retained his attorney, until the date the Employer withdrew its suspension petition. In Finding of Fact No. 10, the Referee explained the reduction of the fee request as follows:
A reasonable attorney’s fee of $1,000.00 is approved for assessment against employer under the facts and circumstances of this case. Claimant did not testify; no deposition was taken; the only witness was Ms. Williams, a rehabilitation coordinator, who testified for employer and whose testimony did not sustain employer’s burden of proof; no competent or admissible medical evidence was adduced; *453 only two hearings were scheduled and held; and the burden of proof was on the employer.
The majority relies on our decision in Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service), 140 Pa.Commonwealth Ct. 51, 592 A.2d 358 (1991), where we held that fees for an unreasonable contest were limited to a “reasonable sum” and that an amount could be less than 20% of compensation that is normally awarded pursuant to Section 442 of The Pennsylvania Workmen’s Compensation Act (Act), 1 if that amount were shown to be unreasonable. In Eugenie , we also held that it was within the Referee’s fact-finding function to determine the amount of counsel fees the Employer is required to pay. The majority holds that the Referee’s finding awarding $1,000.00 was within his fact-finding function, not plain error, and affirmed.
I would, however, reverse the Referee’s order because the Referee based his determination on counsel fees largely because the hours spent were “easy” due to the complete failure of the Employer at the hearing to offer any evidence that would sustain its petition. Easy or not, Claimant’s attorney was still required to spend time attending hearings and in preparing the defense of Employer’s petition. That time should be compensated.
The fee agreement between Claimant and his counsel establishes that if there was a favorable result but no compensation awarded, a fee of $85.00 per hour would be paid. Claimant’s attorney introduced evidence that he spent 17.15 hours in defense of Employer’s petition. Because the Employer did not contest the claim for fees at all, neither the reasonableness of the hours worked nor the hourly rate was at issue. An employer who engages in an unreasonable contest should be required to pay at least what a claimant would be required to pay in reasonable counsel fees.
Accordingly, because any fee amount below an amount equal to the hours worked times the hourly rate would be unsupported by the evidence before the Referee, I would *454 modify the Referee’s award to an amount equal to $85.00 x 17.15 hours, or $1,457.75.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 998.