Opinion
Argued June 10, 1982
February 9, 1983.
Workmen's compensation — Attorney fees — Reasonable basis for contest — Motive.
1. Counsel fees will not be awarded a successful workmen's compensation claimant when the employer or insurer establishes that there existed a reasonable basis for contesting the claim, and the motive of the employer or insurer in contesting the claim is irrelevant. [640]
Judge ROGERS concurred in the result only.
Argued June 10, 1982 before President Judge CRUMLISH, JR. and Judges ROGERS and MacPHAIL, sitting as a panel of three.
Appeal, No. 1636 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in case of Helen V. Bambino, Widow of Edmond E. Bambino, v. Rohm Haas Company, No. A-79925.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Request for counsel fees denied. Petitioner appealed to the Workmen's Compensation Appeal Board. Order affirmed. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Spencer A. Manthorpe, Hepburn, Willcox, Hamilton Putnam, for petitioner.
John F. McElvenny, for respondents.
Helen V. Bambino appeals a Workmen's Compensation Appeal Board order which affirmed a referee's denial of counsel fees. We affirm.
Bambino's husband filed a claim for workmen's compensation after he contracted an occupational disease. Prior to his claim's resolution, he died, and Bambino filed and reached settlement on a fatal claim petition. Bambino, alleging that the insurer had not established a "reasonable basis" for contesting her claim, petitioned for counsel fees under Section 440 of the Workmen's Compensation Act. The referee denied the petition and the Workmen's Compensation Appeal Board affirmed the denial.
Act of June 2, 1915, P.L. 736, added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P. S. § 996.
Under Section 440, the denial of counsel fees is proper only where the insurer has established a reasonable basis for the contest. Kane v. Workmen's Compensation Appeal Board, 62 Pa. Commw. 192, 435 A.2d 312 (1981). Whether the insurer has satisfied this burden is a legal question and, hence, subject to our review. Beaver Supermarket v. Workmen's Compensation Appeal Board, 56 Pa. Commw. 505, 424 A.2d 1023 (1981).
Bambino argues that the denial of counsel fees was erroneous because the insurer did not have a "reasonable basis" for contesting the compensation claim. Bambino has grounded this contention solely upon the fact that the insurer's only apparent motive in contesting the compensation claim was to obtain a general release of all potential civil claims. However, an insurer's motive in contesting a compensation claim is clearly irrelevant to the question of whether it has a "reasonable basis," or sound foundation, upon which the claim can rationally be defended. Cf., e.g., Gunther v. Workmen's Compensation Appeal Board, 66 Pa. Commw. 487, 444 A.2d 1342 (1982) (unreasonable contest will be found where contest is determined to be frivolous or where no countervailing evidence had been introduced). Therefore, as Bambino has advanced no other grounds in support of her assertion of error, this contention must be rejected.
A "frivolous" defense is one which is raised although it is clearly lacking in legal sufficiency and, hence, is presumably interposed for mere purposes of delay or harassment. Black's Law Dictionary 795-796 (4th ed. 1968).
A party alleging error must point out where the error lies and must adduce reasons in support of the assertion of error, or they will be deemed waived. E.g., Sladkin v. Greene, 359 Pa. 528, 59 A.2d 105 (1948); In re Beach's Estate, 324 Pa. 142, 188 A. 108 (1936); Trustees of the First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp, 248 Pa. Super. 470, 375 A.2d 193 (1977); Castel v. Mitchell, 56 Pa. Commw. 64, 423 A.2d 1375 (1981). Hence, the merits of the insurer's defense to the compensation claim in this case need not be addressed because they have not been questioned before us.
Affirmed.
ORDER
The Workmen's Compensation Appeal Board order of June 11, 1981, in A-79925, is hereby affirmed.
Judge ROGERS concurs in the result only.