# Reyes v. Workers' Compensation Appeal Board > Commonwealth Court of Pennsylvania · March 16, 2009 · 967 A.2d 1071 URL: https://www.frixlaw.com/law-library/cases/9694086 ## Case - **Full name:** Robert REYES, Petitioner v. WORKERS’ COMPENSATION APPEAL BOARD (AMTEC), Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** March 16, 2009 - **Citations:** 967 A.2d 1071; 2009 Pa. Commw. LEXIS 103; 2009 WL 649058 - **Precedential status:** Published - **Opinion:** Dissent by Pellegrini - **Judges:** Leadbetter, McGinley, Ner, Pellegrini, Simpson, Leavitt, Butler - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694086 ## How later opinions describe it (automated extraction) - holding that the Board did not err in affirming the denial of a claim 9 petition where the employer immediately terminated the claimant for pre-accident misconduct once the employer learned of the misconduct - noting that waiver rules applicable to pleadings filed in judicial proceedings do not apply in administrative proceedings ## Opinion text DISSENTING OPINION BY Judge PELLEGRINI. The cost portion of this appeal looks simple, handled by the majority in about a single-typewritten page. Not a lot of money is involved either — about $3,300. But as they say, looks can be deceiving. What really is at issue is when a claimant’s attorney is entitled to have costs reimbursed when a claim petition is granted. Because Claimant’s claim petition was granted and he prevailed on “matters at issue,” Claimant is entitled to litigation costs under Section 440(a) of the Workers’ Compensation Act (Act). 1 Accordingly, I respectfully dissent. On April 26, 2006, Claimant was in a work vehicle when the car left the road and he bumped his head on the ceiling of the car. Though not in the record, Employer issued a notice of compensation denial acknowledging the accident but disputing disability. “Several days later,” Employer fired Claimant for falsely billing customers. On May 11, 2006, Claimant filed a claim petition alleging that he suffered a compression fracture at T5, low, mid and upper back pain, neck pain and headaches from a motor vehicle accident sustained during the course and scope of his employment as a cable technician on April 26, 2006. Employer answered, essentially denying everything, stating, among other things, that: 1. Claimant’s claim is barred under the Statute of Limitations as provided in the Workers’ Compensation Act. 2. Claimant’s claim is barred under the notice provisions of the Workers’ Compensation Act. 3. The medical condition that the claimant suffered was not causally related to his/her work activity. 4. Claimant’s claim is barred by res judica-ta or collateral estoppel. 5. Claimant was not in the course of employment at the time of injury. Before the WCJ, Norman Stempler, M.D. (Dr. Stempler) opined that Claimant was still unable to work as the date of his last evaluation, which was August 18, 2006. Employer’s medical expert, S. Ross Noble, M.D. (Dr. Noble) testified that Claimant may have sustained a soft tissue injury but he was fully recovered from any injury as of the date of his exam, November 1, 2006. The WCJ granted the claim petition and ordered Employer to pay Claimant reasonable and necessary medical expenses related to the work injury up until the date of Dr. Noble’s exam but denied indemnity benefits because any loss of earning power was due to his misconduct, not to the work-related injury. He denied Claim *1081 ant’s claim for costs of litigation because he failed to prevail on the issues in controversy: wage loss disability related to his work injury and ongoing work-related injury beyond November 1, 2006. Claimant appealed to the Board, which affirmed. Even though Claimant’s claim petition was granted and he was awarded medical benefits, the majority holds that he did not prevail because he did not receive any indemnity benefits because any loss of earning power was due to his misconduct. I disagree with the majority because Claimant’s claim petition was granted and he prevailed on other “matters at issue.” Therefore, he is entitled to litigation costs. Section 440(a) of the Act sets forth when a claimant is entitled to litigation costs. It provides, in relevant part: 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’s fees, 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. (Emphasis added.) At issue, then, is the meaning of to have a “matter at issue” “determined in whole or part” in Claimant’s “favor” entitling a claimant to litigation costs. In answering that question, what first needs to be determined is what is a “matter at issue” in a workers’ compensation proceeding. Under the Act, a “matter at issue” is framed by the pleadings. Section 410 of the Act, 77 P.S. § 751, provides that a claimant should file: If, after any injury, the employer or his insurer and the employe or his dependent, concerned in any injury, shall fail to agree upon the facts thereof or the compensation due under this act, the employe or his dependents may present a claim petition for compensation to the department. Upon receiving a claim petition, Section 416 of the Act, 77 P.S. § 821, requires that the Employer: Within twenty days after a copy of any claim petition or other petition has been served upon an adverse party, [he] may file with the department or its workers’ compensation judge an answer in the form prescribed by the department. Every fact alleged in a claim petition not specifically denied by an answer so filed by an adverse party shall be deemed to be admitted by him. But the failure of any party or of all of them to deny a fact alleged in any other petition shall not preclude the workers’ compensation judge before whom the petition is heard from requiring, of his own motion, proof of such fact. If a party fails to file an answer and/or fails to appear in person or by counsel at the hearing without adequate excuse, the workers’ compensation judge hearing the petition shall decide the matter on the basis of the petition and evidence presented. Under this pleading scheme, then, a “matter at issue” is determined by the claim petition and Employer’s answer thereto, nothing else. What goes before is irrelevant because the parties’ rights and *1082 duties are determined solely by the outcome of this proceeding. Next, what has to be determined is what it means to have a “matter at issue” resolved in Claimant’s “favor” “in whole or in part.” In answering that question, we have held that “[i]n order for a claimant to be awarded litigation costs, the claimant must prevail on the particular issue or petition for which he seeks costs.” Hayduk v. Workers’ Compensation Appeal Board (Bemis Co., Inc.), 906 A.2d 622, 635 (Pa.Cmwlth.2006). In this case, Claimant prevailed on a particular issue and the petition for which he sought costs. He was successful on the petition for which he sought costs because the WCJ granted the claim petition, which alone would justify the awarding of costs. He was also awarded payment of medical bills, which if Employer prevailed in the defenses that he was not injured, that the injury was not causally related to his work or that he was not injured within the course of his employment, he would not have received. Moreover, he prevailed on a number of “particular issues” when Employer essentially abandoned almost all of the “matters of issue” raised in its answer, e.g., the claim was barred by the statute of limitations as provided in the Act; barred under the notice provisions of the Workers’ Compensation Act; the claim was barred by res judicata or collateral estop-pel. 2 Because the WCJ granted Claimant’s claim petition that he suffered a work-related injury which Employer did not concede in its answer and prevailed on other matters placed at issue, I would hold that Claimant is entitled to the litigation costs and award the litigation costs as the WCJ has already determined that amount fair and reasonable. For these reasons, I respectfully dissent. Judge SMITH-RIBNER joins in this dissenting opinion. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996(a). . In footnote 14, the majority obfuscates by attempting to turn what is the "matter at issue” within the meaning of Section 440 of the Act into a question of fact rather than a question of law. The majority's obfuscation ignores that the pleadings are required by the Act and are binding on the parties. To hold otherwise makes the pleadings less than nothing. If one party "gives up,” that is not an amendment but a concession, necessarily meaning that the other party prevails. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694086. Public record. Not legal advice.