Can a Worker's Compensation Judge Exercise His Discretion In Awarding Reasonable Litigation Costs ?
In Braun Baking Company v. Workmen's Compensation Appeal Board (Stevens), 136 Pa. Commw. 499, 583 A.2d 860 (Pa. Cmwlth. 1990), the Court affirmed a decision of a the Workers' Compensation Judge (WCJ) to award claimant costs in successfully defending an employer's termination petition.
Also at issue in that proceeding was employer's suspension petition, on which the employer prevailed.
The WCJ awarded the claimant his costs, even though the record did not specify the petition for which his costs were incurred.
The Court upheld the award, reasoning as follows:
As the claimant inarguably prevailed on a petition to modify benefits, we will not interfere with the WCJ's discretionary award of costs in this case, especially since the WCJ found these costs to be reasonable. Id. at 864.
In Braun, this Court gave deference to the WCJ's exercise of discretion in determining and awarding reasonable litigation costs.
By contrast, in Holmes v. Workmen's Compensation Appeal Board Pisani Brothers, Inc.), 86 Pa. Commw. 543, 485 A.2d 874 (Pa. Cmwlth. 1984), the Court gave a more careful reading of "matter at issue" as used in Section 440(a) of the Act.
The Court held that a claimant was not entitled to costs where it was found by the WCJ that one job was available to the claimant but the other job was not.
The Court held that the contested issue - availability of suitable work - was not resolved in claimant's favor as to entitle him to costs. Id. at 876.
In other words, a claimant must prevail on the contested issue in order to be awarded litigation costs.