The opinion
DISSENTING OPINION BY
Judge PELLEGRINI.
Because I disagree with the majority that the Employer’s contest became reasonable when it obtained an Independent Medical Examination (IME) six months after the claim petition was filed, I respectfully dissent.
On June 28, 1995, Claimant filed a claim petition alleging that on April 26, 1995, he suffered an injury while working as a pipe-fitter with Employer. Employer filed an answer denying the allegations. The WCJ granted the claim petition and determined that because Employer’s expert medical witness did not examine Claimant until December 28, 1995, eight months after the injury and six months after the claim petition was filed, the Employer engaged in an unreasonable contest and ordered it to pay attorney’s fees in the amount of $6,544. The Board affirmed the WCJ’s award of benefits, but modified the contest fees, reasoning that once the IME had been obtained, the contest became reasonable and held Employer responsible for counsel fees only until the date of the IME, December 28, 1995. I disagree with the majority’s affirmance of the Board’s decision because I do not believe that after-acquired medical evidence can turn an unreasonable contest into a reasonable one.
The purpose of awarding counsel fees under Section 996 of the Workers’ Com *661 pensation Act 1 is to deter unreasonable contests of workers’ claims and to insure that successful claimants receive compensation undiminished by costs of litigation. Ramich v. Workers’ Compensation Appeal Board (Schatz Electric, Inc.), 564 Pa. 656 , 770 A.2d 318 (2001). With that purpose in mind, in Pruitt v. Workers’ Compensation Appeal Board (Lighthouse Rehabilitation), 730 A.2d 1025 (Pa.Cmwlth.1999), where an employer did not conduct an IME until eight months after the injury occurred, when the contest was already fait accompli we held that the subsequently acquired medical evidence could not provide a reasonable basis for a contest and found that counsel fees were appropriate. Id. at 1028-29 . We found that “at the time Employer originally chose to contest payment of compensation, Employer had no reasonable grounds to do so, and [the doctor’s] post hoc examination does not cure this defect.” Id. at 1029 . See also Boyer v. Workers’ Compensation Appeal Board (First Capital Insulation, Inc.), 740 A.2d 294 (Pa.Cmwlth.1999) (holding that because the medical examination did not take place until ten months after the reinstatement petition was filed and because the contest was already fait accompli before the examination took place, that the doctor’s post hoc examination and testimony could not provide a reasonable basis for the contest.).
Accordingly, because an employer is to make a decision about workers’ compensation benefits at the time a claim for compensation is filed, and not, as here, where the Employer denied Claimant’s claim without any medical evidence and failed to procure such evidence until six months after its contest began, I would reverse the Board’s order and reinstate the WCJ’s order awarding full counsel fees.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2606.77 P.S. § 996. § 996, which provides:
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 fee, 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.