Case Law Update | Department of Labor & Industry v. WCAB (Pa. Cmwlth. March 7, 2016) | PA Work Injury

March 7, 2016

Employer won a suspension.  Claimant/Pitt appealed to WCAB and specifically sought unreasonable contest attorney’s fees (it’s unclear if he sought them at WCJ level).  WCAB granted appeal, overturned suspension, but did not address the attorney’s fees issue.  Neither side appealed to Cmwlth Ct.  A month later, Pitt sought costs and attorney’s fees via Review Petition to a different WCJ, which found the petition improper because the issue should have been raised via appeal or by seeking reconsideration/rehearing  from WCAB, which Pitt did not do.

 

Affirmed: WCAB failure to address the attorney’s fees issue was not merely a technical error subject to correction via review petition.  Award of attorney’s fees in WC is not automatic, and is therefore part of the substance/merits of a case.  Claimant’s victory on appeal did not entitle him to attorney’s fees/costs and it was his onus to seek/ensure reconsideration or appeal of WCAB omission: “Claimant’s proper remedy was to request reconsideration by the Board or file an appeal to this Court. Claimant failed to do either. Consequently, the Board’s order is final and cannot be collaterally attacked by a subsequently filed review petition.”

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/2002CD15_7-26-16.pdf?cb=1

 

 

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