## Facts

- John Murphy, Jr. (Claimant) worked as an auto mechanic for Bell’s Repair Service (Employer).
- On January 22, 2001, Claimant slipped and fell on ice at work, injuring his right hip and back; no one witnessed the fall.
- Claimant went to the emergency room two days later and was diagnosed with right hip/lumbar problems with radiating symptoms; he was told not to work and to follow up.
- Claimant continued treatment with another doctor after discharge.
- On March 16, 2001, Claimant filed a claim petition seeking total disability benefits beginning January 23, 2001.
- In May 2001, Claimant began treating with Dr. John A. Levy, a board-certified orthopedic surgeon, who diagnosed a work-related lumbar strain (with degenerative changes) from the January 2001 fall.
- Dr. Levy later testified that Claimant fully recovered and could return to full-time work without restrictions as of June 25, 2001.
- In July 2001, Claimant left Employer and began working for Mongell’s Car Care.
- At Employer’s request, Claimant was examined on January 10, 2002 by Dr. Allen J. Tissenbaum, also a board-certified orthopedic surgeon, who agreed Claimant sustained a work-related injury and that Claimant had fully recovered as of June 25, 2001.
- Employer contested the claim, arguing the disability period and Claimant’s credibility were in dispute because the fall was unwitnessed, but Employer offered no medical opinion disputing work relatedness and no lay testimony contradicting Claimant’s account.
- After hearings (beginning May 22, 2001 and continuing through April 10, 2002), the WCJ granted benefits for a closed period (January 23 through June 25, 2001) and awarded attorney’s fees under Section 440 based on an unreasonable contest.
- The Workers’ Compensation Appeal Board affirmed. Employer sought rehearing limited to the attorney’s-fee/unreasonable-contest determination; the Board denied rehearing and left its affirmance in place.
- Employer petitioned for review in the Commonwealth Court, arguing it reasonably contested Claimant’s credibility because the accident was unwitnessed.

## Issues

1. Whether Employer proved it had a reasonable contest under Section 440 of the Pennsylvania Workers’ Compensation Act when it challenged credibility based on an unwitnessed accident but presented no evidence contradicting the occurrence, work relatedness, or the closed period of disability found by the WCJ.

## Decision

- The Commonwealth Court affirmed the Board’s order denying rehearing and sustaining the WCJ’s award.
- The court held Employer did not meet its burden to show a reasonable contest; the WCJ properly awarded attorney’s fees under Section 440.
- The closed-period disability award (January 23–June 25, 2001) remained in effect.

## Legal Principles

- A successful claimant is entitled to attorney’s fees under Section 440 unless the employer shows its contest was reasonable.
- The employer bears the burden to prove a reasonable contest by showing the litigation raised a genuine factual or legal dispute supported by the record.
- Whether a contest is reasonable depends on the totality of the circumstances, including the evidence available during litigation; a contest is not reasonable when it lacks record support.
- An unwitnessed workplace incident, standing alone, does not automatically make a credibility-based contest reasonable where the claim is supported by consistent medical evidence and the employer offers no contrary proof.
- The WCJ is the fact-finder and decides credibility and evidentiary weight; appellate review does not reweigh evidence where findings are supported by substantial evidence.
- The Board’s decision on a petition for rehearing is discretionary; rehearing is not required when the petition does not present new, previously unavailable evidence or another basis warranting reopening the record.

## Conclusion

Because Employer relied largely on the fact that the fall was unwitnessed and on a general attack on Claimant’s credibility—while its own medical evidence confirmed a work-related injury and the recovery date adopted by the WCJ—the Commonwealth Court agreed that the contest lacked a record-based foundation and that attorney’s fees for an unreasonable contest were properly awarded along with closed-period benefits.


Bell's Repair Service v. Workers' Compensation Appeal Board (Murphy Jr.), 850 A.2d 49 (2004)