            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Roberta Harris,                                 :
                       Petitioner               :
                                                :
               v.                               :
                                                :
Workers’ Compensation Appeal                    :
Board (Giant Food Stores),                      :   No. 194 C.D. 2019
                  Respondent                    :   Submitted: February 28, 2020


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: July 27, 2020


               Roberta Harris (Claimant) petitions for review from the January 23, 2019
order of the Workers’ Compensation Appeal Board (Board) denying her request for
attorneys’ fees pursuant to Section 440(a) of the Workers’ Compensation (Act), Act
of June 2, 1915, P.L. 736, as amended, 77 P.S. § 996(a),1 because the Board
concluded that Giant Food Stores (Employer) had a reasonable basis to seek
modification of her benefits. Also before this Court is Employer’s request for
attorneys’ fees against Claimant’s counsel for filing a frivolous appeal pursuant to
Pennsylvania Rule of Appellate Procedure 2744 (Rule 2744). Upon review, we affirm
the Board’s order denying Claimant attorneys’ fees under Section 440(a) of Act and
we deny Employer’s request for attorneys’ fees pursuant to Rule 2744.

      1
          Added by Section 3 of the Act of February 8, 1972, P.L. 25.
                                 Factual Background
             On September 18, 2003, Claimant injured her lower back while she was
lifting a 40-pound box of crab legs while working as a seafood clerk at Employer’s
store located in Plymouth Meeting, Pennsylvania. Petition for Review ¶ 6. Employer
issued a Temporary Notice of Compensation Payable that converted to a Notice of
Compensation Payable, accepting liability for a lower back strain/sprain and
confirming total disability payments at a weekly rate of $337.50, based on an average
weekly wage of $429.60. Id. ¶ 9. In July of 2004, Claimant moved to North Carolina
due to economic hardship. Certified Record (C.R.) Item No. 34, WCJ Decision,
Finding of Fact (F.F.) #1b.
                               Procedural Background
             In 2005 and 2006, Employer filed petitions to modify, suspend and
terminate Claimant’s benefits. C.R. Item No. 15, WCJ Amended Decision. By order
circulated on April 27, 2007, a WCJ denied the petitions, concluding that Employer
failed to prove it offered a specific job within Claimant’s capabilities or that Claimant
had fully recovered from her work-related injury. Id.
             Almost a year later on April 17, 2008, Employer filed a modification
petition alleging it offered Claimant a specific job Claimant was capable of performing
but that Claimant failed to return to work. C.R. Item No. 4. On the same day,
Employer filed a petition with the WCJ seeking an order to compel Claimant to attend
a vocational interview. C.R. Item No. 2. A few months later on August 4, 2008,
Employer filed a petition with the WCJ seeking an order to compel Claimant to attend
an independent medical examination (IME) because the last IME was conducted on
November 8, 2007. C.R. Item No. 8. By order circulated August 19, 2008, the WCJ


                                           2
granted Employer’s petitions and ordered Claimant to attend a vocational interview
and an IME. C.R. Item No. 10, WCJ Order. Claimant failed to attend either so
Employer sought the suspension of her benefits,2 which the WCJ ultimately granted
by order dated December 23, 2008. C.R. Item No. 15, WCJ Amended Decision, F.F.
#10. The modification petition remained unresolved.
               On April 9, 2009, the WCJ issued another order granting Employer’s
second request for an IME and vocational interview and, as part of this order, the WCJ,
again, expressly directed Claimant to attend these appointments. C.R. Item No. 12,
WCJ Interlocutory Order. Claimant failed to complete either and the WCJ issued an
order on August 31, 2009, noting that Claimant has unreasonably delayed the litigation
and directing Claimant to appear at the next scheduled hearing where Employer may
submit evidence to support its unresolved modification petition. C.R. Item No. 13,
WCJ Interlocutory Order.           Claimant failed to appear for the hearing on the
modification petition and the WCJ accepted evidence on the merits of the petition. C.R.
Item No. 15, WCJ Amended Decision at 2. By amended decision and order circulated
February 9, 2010,3 the WCJ granted Employer’s modification petition and modified
Claimant’s wage loss compensation to $1.11 per week as of February 15, 2008. C.R.
Item No. 15, WCJ Amended Order.
               Claimant appealed the WCJ’s order to the Board, and, upon review, the
Board concluded that it could not complete its review because “none of the documents
that the WCJ relied upon are in the record.” C.R. Item No. 18, Board Opinion and

       2
         Upon Employer’s application, the WCJ granted a supersedeas of the payment of
Claimant’s benefits effective February 15, 2008. C.R. Item No. 11, WCJ Interlocutory Order;
Supersedeas Granted.
       3
          Initially, the WCJ issued an order on January 28, 2010, incorrectly suspending Claimant’s
benefits rather than modifying them. C.R. Item No. 14, WCJ Order.

                                                3
Order at 4. The Board remanded the matter to the WCJ and directed him to complete
and/or reconstruct the record to clarify whether Claimant’s benefits are to be suspended
or modified and, if necessary, to reconsider his decision and order. Id. at 6. Nearly six
years after the remand order,4 the WCJ circulated a new decision and order on August
24, 2017, wherein he rendered the following conclusions:


             1. [Employer] sustained its burden in its [m]odification
                [p]etition and is entitled to modification based on the job
                offer.

             2. However, [s]uspension had been granted by the [o]rder
                [of] December 23, 2008[,] and now, nearly nine years
                after, Claimant still has failed to appear for a physical
                examination.

             3. The [o]rders of 2008 and 2010 remain in effect and no
                change is warranted.

C.R. Item No. 22, WCJ Decision and Order, Conclusions of Law. On September 12,
2017, Claimant filed an appeal with the Board alleging that Employer’s modification
petition should have been denied because she had attended a medical examination and
she provided evidence of a disability. C.R. Item No. 23, Appeal. Claimant also argued
that Employer’s job offer and its contest of this matter was unreasonable. Id. On June
28, 2018, Employer responded with a motion to quash alleging that Claimant’s appeal
was late and cannot be considered. C.R. Item No. 25, Employer’s Motion to Quash.
             The Board, by opinion and order mailed January 23, 2019, denied
Employer’s motion to quash and reversed in part and denied in part the WCJ’s order.



      4
        The WCJ did not explain why six years had elapsed between the Board’s remand order
and the WCJ’s issuance of his decision and order.
                                            4
C.R. Item No. 27, Board Opinion and Order at 13. The Board concluded that the WCJ
erred when it granted Employer’s modification petition reasoning that:

             The job [Employer] offered to Claimant in February 2008
             was in its store in Plymouth Meeting, Pennsylvania, where
             Claimant worked at the time of her 2003 injury. However,
             in his April 27, 2007, [d]ecision and [o]rder, [the WCJ] . . .
             had found that Claimant moved to North Carolina in July
             2004 to live with family due to economic hardship. . . .
             [Employer] does not dispute that Claimant still lived in
             North Carolina in February 2008 and has continued to live
             there through the present. Thus, per the Court’s holding in
             [Motor Coils MFG/WABTEC v. Workers’ Compensation
             Appeal Board (Bish), 853 A.2d 1082, 1086-87 (Pa. Cmwlth.
             2004),] the job offer at the heart of [Employer’s] current
             [m]odification [p]etition was not available to Claimant and
             the WCJ erred in granting that [p]etition.
Id. at 9-10. Although the Board determined that Claimant should have prevailed on
the modification petition, the Board concluded that Claimant was not entitled to
unreasonable contest attorneys’ fees because “[t]he evidence shows that the extent of
[Claimant’s] disability and earning power was a genuinely disputed issue.” Id. at 11.
The Board further noted that “given the highly unusual circumstances in this case, it
would be very difficult to conclude that [Employer’s] contest was unreasonable.” Id.
at 11-12. The Board also concluded that the suspension order remained in effect based
upon Claimant’s refusal to submit to the vocational interview and/or the IME, which
was the basis of the WCJ’s December 23, 2008 order. Id. at 10 & 12. Based on the
foregoing, the Board issued an order that (1) reversed Employer’s modification petition
based upon the job offer; (2) denied Employer’s motion to quash; and (3) in all other
respects affirmed the WCJ’s decision and order. Id. at 13.
             On February 19, 2019, Claimant petitioned this Court for review of the
Board’s January 23, 2019 decision and raised two issues. First, Claimant challenged

                                           5
the Board’s decision and order to the extent that it held that her benefits remain
suspended and sought reversal of the suspension order. Petition for Review (Petition)
¶ 2, Relief Requested (2). Second, Claimant challenged the Board’s holding that she
was not entitled to attorneys’ fees based on an unreasonable contest brought by
Employer and sought an award of attorneys’ fees and costs as a penalty. Id. at 13,
Relief Requested (3). In response, Employer filed a motion to quash Claimant’s
Petition asserting that it was untimely as the WCJ suspended her benefits over 10 years
ago by decision and order on December 23, 2008. Employer’s Motion to Quash ¶ 9.
              After argument on Employer’s motion to quash, this Court, by order
dated June 12, 2019, granted Employer’s motion to the extent Claimant challenged the
December 23, 2008 suspension of her benefits because Claimant did not timely appeal
the suspension. Harris v. Workers’ Comp. Appeal Bd. (Giant Food Stores) (Pa.
Cmwlth., No. 194 C.D. 2019, filed June 12, 2019), slip op. at 6. This Court, however,
noted that Employer’s motion to quash did not address the second issue raised by
Claimant in her Petition, that is whether the Board erred by concluding that she was
not entitled to an award of unreasonable contest attorneys’ fees. Id. Therefore, this
Court ruled that the matter will proceed for consideration of the issue of unreasonable
contest attorneys’ fees. Id. at 7.
              On June 21, 2019, Claimant filed a motion for reconsideration of this
Court’s June 12, 2019 order partially quashing her appeal. See Claimant’s Motion for
Reconsideration of Order Partially Quashing Appeal filed 6/21/19. By order dated
July 12, 2019, this Court denied Claimant’s motion for reconsideration. Cmwlth. Ct.
Order dated 7/12/19.      On July 19, 2019, Claimant filed a second motion for
reconsideration of this Court’s June 12, 2019 order. See Claimant’s Further Motion
for Reconsideration of Order Partially Quashing Appeal filed 7/19/19. By order dated


                                          6
July 24, 2019, this Court denied Claimant’s second motion pursuant to Pennsylvania
Rule of Appellate Procedure 2547 (“Second or subsequent applications for
[reconsideration] . . . will not be received.”). Cmwlth. Ct. Order dated 7/24/19.
              On September 21, 2019, Claimant filed a supplemental brief to support
her request for attorneys’ fees and “Volume I” of her reproduced record.                   On
September 23, 2019, Claimant filed a motion to supplement the record with “Volume
II” of her reproduced record. See Claimant’s Motion for Supplementation of Original
Record dated 9/23/19. Employer answered Claimant’s motion on October 1, 2019,
and argued that Claimant’s records are “wholly irrelevant to the narrow issue pending
before the . . . Court, which is whether the WCJ erred in not awarding attorneys’ fees.”
Employer’s Response to Claimant’s Motion for Supplementation of Original Record
filed 10/1/19 ¶ 11. After review of the parties’ filings, this Court denied Claimant’s
request and ordered Volume II stricken from the reproduced record, as Volume II only
contained records that addressed the suspension of Claimant’s benefits which were not
relevant given the limited nature of the issues before this Court. Cmwlth. Ct. Order
dated 10/4/19.
              On October 25, 2019, Employer filed an application seeking attorneys’
fees to be assessed against Claimant’s counsel pursuant to Rule 2744. See Employer
Application for Attorneys’ Fees dated 10/25/19 (Employer’s Application). This Court,
by order dated November 26, 2019, ordered that Employer’s request for attorneys’ fees
be considered with the merits of Claimant’s appeal. Cmwlth. Ct. Order dated 11/26/19.
              We now consider the two issues remaining in this matter, that is, whether
the Board erred in holding that Claimant was not entitled to attorneys’ fees pursuant to
Section 440(a) Act for an unreasonable contest allegedly brought by Employer5 and

       5
         This Court’s review of an order of the Board is limited to determining whether the
necessary findings of fact are supported by substantial evidence, whether Board procedures were
                                              7
whether Employer is entitled to attorneys’ fees pursuant to Rule 2744 for a frivolous
appeal brought by Claimant. We begin with Claimant’s request for unreasonable
contest attorneys’ fees.
                                 A. Unreasonable Contest Fees
                Claimant asserts that the Board erred when it concluded that she is not
entitled to an award of attorneys’ fees with respect to Employer’s modification petition.
Section 440(a) of the Act provides that a claimant who is successful in whole or in part
in a litigated claim is entitled to a reasonable sum for attorneys’ fees unless the
employer proves that its contest is reasonably based. 77 P.S. § 996(a).6 Whether an
employer’s contest was reasonable is a question of law, freely reviewable by this Court.
Essroc Materials v. Workers’ Comp. Appeal Bd. (Braho), 741 A.2d 820, 826 (Pa.
Cmwlth. 1999). The reviewing court must look at the totality of the circumstances
surrounding the contest. Eidell v. Workmen’s Comp. Appeal Bd. (Dana Corp.), 624
A.2d 824 (Pa. Cmwlth. 1993). The reasonableness of an employer’s contest depends


violated, whether constitutional rights were violated or whether an error of law was committed.
Thompson v. Workers’ Comp. Appeal Bd. (Cinema Ctr.), 981 A.2d 968, 972 n. 4 (Pa. Cmwlth.
2009).
       6
           Section 440(a) 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 additional to the
                award for compensation, a reasonable sum for costs incurred for
                attorney’s fee . . . Provided, That cost for attorney fees may be
                excluded when a reasonable basis for the contest has been
                established by the employer or insurer.

77 P.S. § 996(a).
                                                 8
on whether the contest was prompted to resolve a genuinely disputed issue, which can
be a legal or factual issue or both. Thompson v. Workers’ Comp. Appeal Bd. (Cinema
Ctr.), 981 A.2d 968, 973 (Pa. Cmwlth. 2009). A contest is reasonable if the employer,
at the time it files its petition, has evidence which would support its petition and it is
obvious that the contest is not frivolous or commenced to harass the claimant. Id. at
973. The purpose of Section 440(a) of the Act is “intended to deter unreasonable
contests of workers’ claims and to ensure that successful claimants receive
compensation undiminished by the costs of litigation.” Eidell, 624 A.2d at 826.
               Here, the Board concluded that Employer presented a reasonable contest
because the “extent of [Claimant’s] disability and earning power was a genuinely
disputed issue.” C.R. Item No. 27, Board Opinion and Order at 11. An employer can
seek to modify a claimant’s benefits based upon a change in a claimant’s medical
condition or based upon a change in the earning power of a claimant. See Sections
306(b)(2)-(3) and 413 of the Act, 77 P.S. §§ 512(2)-(3), 772; Lewis v. Workers’ Comp.
Appeal Bd. (Giles & Ransome, Inc.), 919 A.2d 922, 925-26 (Pa. 2007); Rebeor v.
Workers’ Comp. Appeal Bd. (Eckerd), 976 A.2d 655, 658 (Pa. Cmwlth. 2009). To
prevail in a modification petition based upon a change in earning power, the employer
must either: (1) offer to a claimant a specific job that it has available, which the
claimant is capable of performing or (2) establish “earning power” through expert
opinion evidence including job listings with employment agencies, agencies of the
Department of Labor and Industry, and advertisements in a claimant’s usual area of
employment.7 See S. Hills Health Sys. v. Workers’ Comp. Appeal Bd. (Kiefer), 806

      7
          These options are provided in Section 306(b)(2) of the Act, which provides as follows:

               “Earning power” shall be determined by the work the
               employe is capable of performing and shall be based upon
               expert opinion evidence which includes job listings with
                                                9
A.2d 962, 968 (Pa. Cmwlth. 2002); see also Kachinski v. Workmen’s Comp. Appeal
Bd. (Vepco Constr. Co.), 532 A.2d 374, 380 (Pa. 1987). If an employer seeks a
modification of benefits based on an offer of a specific job with employer, the
employer must show that the offered job is within the claimant’s physical capabilities
and actually available to a claimant. H.M. Stauffer & Sons, Inc. v. Workmen’s Comp.
Appeal Bd. (Davis), 687 A.2d 869, 871 (Pa. Cmwlth. 1996). To be actually available,
the offered job must be within the reach of a claimant’s current residence. Motor Coils
MFG/WABTEC, 853 A.2d at 1086 (citing USAir, Inc. v. Workers’ Comp. Appeal Bd.
(Keene), 706 A.2d 888 (Pa. Cmwlth. 1998); City of Pittsburgh PMA Mgmt. Corp. v.
Workers’ Comp. Appeal Bd. (Ferraro), 705 A.2d 492 (Pa. Cmwlth. 1998)). Once
employer meets its burden, the burden shifts to claimant to establish that she acted in
good faith with respect to the proffered job. H.M. Stauffer & Sons, Inc., 687 A.2d at
871.
               In this case, the WCJ and the Board found that Employer’s modification
petition was supported by an IME performed on November 8, 2007, and a specific job
offer made to Claimant on February 15, 2008. C.R. Item No. 22, WCJ Decision, F.F.



               agencies of the department, private job placement agencies
               and advertisements in the usual employment area. Disability
               partial in character shall apply if the employe is able to
               perform his previous work or can, considering the employe’s
               residual productive skill, education, age and work
               experience, engage in any other kind of substantial gainful
               employment which exists in the usual employment area in
               which the employe lives within this Commonwealth. If the
               employe does not live in this Commonwealth, then the usual
               employment area where the injury occurred shall apply. If
               the employer has a specific job vacancy the employe is
               capable of performing, the employer shall offer such job to
               the employe.

77 P.S. § 512(2).
                                              10
##5-7, C.R. Item No. 27, Board Opinion and Order at 8. Eidell, 624 A.2d at 827
(stating that “a contest is reasonable if the employer, at the time it files its petition, has
evidence which would support that petition”). Claimant, however, contends that
Employer did not have evidence to support its modification petition because the
request for modification was “premised solely upon the [C]laimant’s failure to report
for a job offer in Pennsylvania,” more than 800 miles from Claimant’s North
Carolina residence. Claimant’s Suppl. Brief at 15.
              Employer was aware that Claimant had relocated to North Carolina
when it filed its modification petition. C.R. Item No. 34, WCJ Decision, F.F. #1b &
C.R. Item No. 27, Board Opinion and Order at 9.            However, when evaluating the
reasonableness of Employer’s contest, we must consider the “totality of the
circumstances” to assess whether Employer brought the contest to harass claimant
or to resolve a genuinely disputed issue. Eidell, 624 A.2d at 826-27; Majesky v.
Workmen’s Comp. Appeal Bd. (Transit Am., Inc.), 595 A.2d 761, 764 (Pa. Cmwlth.
1991).
              Here, Claimant contends that Employer never offered any other basis
for contesting her benefits “aside from the refusal to report to Pennsylvania for the
offered job.”     Claimant’s Brief at 15.         However, Employer did not have an
opportunity to establish any other basis, such as Claimant’s change in disability
status or earning power, because Claimant refused to comply with orders to attend a
vocational interview and an IME. As explained by the Board, Claimant’s benefits
were suspended via the WCJ’s December 23, 2008 decision and order because she did
not comply with his orders to attend a vocational interview and an IME. Claimant did
not appeal any of the WCJ’s Orders directing her to attend the examinations and



                                             11
suspending her benefits for failure to attend or even offer a reason for her
noncompliance. C.R. Item No. 27, Board Opinion and Order at 10.
              Specifically, the WCJ issued orders on August 19, 2008, and April 9,
2009, directing Claimant to attend a vocational interview and an IME, but Claimant
failed to attend or respond. C.R. Item No. 15, WCJ Amended Decision at 2. When
Claimant refused to respond to the WCJ’s August 19, 2008 order, the WCJ
suspended her benefits. C.R. Item No. 15, WCJ Amended Decision, F.F. # 10. The
WCJ’s April 9, 2009 order again directed Claimant to attend an IME and vocational
interview, noting that the appointments should be made “on separate days in or near
Philadelphia with the understanding that [Employer] will bear the expense of travel
from North Carolina and return and one night’s stay in a hotel . . . .” C.R. Item No. 12,
WCJ Interlocutory Order. Because the Claimant continued to ignore the WCJ’s orders
to attend an IME and a vocational interview, the WCJ entered an interlocutory order
where he summarized the conduct of Claimant’s attorney and Claimant in this
litigation:


              The latest development is communication by an attorney
              disbarred in the Commonwealth of Pennsylvania (Allen L.
              Feingold) purportedly acting not as attorney but rather as a
              friend advising me that the attorney currently of record for
              [C]laimant (Jeffery Stephen Pearson) has been suspended
              from the practice of law. Feingold, not acting as an attorney,
              suggests a hearing today would be a waste of time and
              requests a continuance. Feingold asserts . . . that [C]laimant
              is without funds and unable to travel, even though
              [Employer] is responsible for travel arrangements.
              ....
              Indeed, these petitions have been delayed by [C]laimant’s
              failure to attend permissible examinations or interviews and
              by filing lawsuits against the selected examiners. Having
              been dismissed in the courts below, [C]laimant has appealed
                                           12
             the dismissal to the Supreme Court of Pennsylvania, where
             the appeal is pending and is guaranteed to be up there [for]
             upwards of a year.

             Quite sensibly, the examiners will not proceed while being
             sued. The effect of this litigation has been to delay
             disposition of these petitions for an outrageous period of
             time.

             Suspended counsel had previously admitted that [Claimant]
             had been coming to Philadelphia from North Carolina in
             order to see her treating physician. That she has been
             unable to do the same in order to attend the legally
             permissible defense exam or interview is a wonder.
C.R. Item No. 13, WCJ Interlocutory Order (emphasis added). As part of his
interlocutory order, the WCJ directed Claimant to appear at the next scheduled hearing
either pro se or with an attorney licensed to practice law in Pennsylvania. Id. Another
hearing was scheduled, but Claimant did not appear and, as a result, the WCJ accepted
Employer’s evidence on the merits of the modification petition and closed the record.
C.R. Item No. 15, WCJ Amended Decision at 2.
             As provided herein, the record shows that Employer attempted to obtain
updated evidence after filing its April 2008 modification regarding the nature of
Claimant’s disability and earning power, but Claimant did not cooperate by submitting
to the ordered IME and vocational interview nor did Claimant respond on the record
as to why she could not comply or was unwilling to comply with the WCJ’s orders.
As a result, Employer could not make an assessment of whether to continue with its
modification petition or to withdraw it based on a change in Claimant’s disability or
earning power. The Board’s conclusion that Employer prompted the contest to resolve
a genuine issue of fact, that is, the extent of Claimant’s disability and earning power is
supported by the record and, therefore, the Board did not err by denying Claimant’s


                                           13
request for attorneys’ fees under Section 440(a) of the Act. We now turn to Employer’s
request.
                             B. Rule 2744 Attorneys’ Fees
             Employer asserts that it is entitled to an award of attorneys’ fees from
Claimant’s counsel pursuant to Rule 2744 because this appeal is frivolous. Rule 2744
allows an appellate court to award attorneys’ fees “if it determines that an appeal is
frivolous or taken solely for delay or that the conduct of the participant against whom
costs are to be imposed is dilatory, obdurate or vexatious.” Pa.R.A.P. 2744. The
imposition of counsel fees and costs under this rule is solely within this Court’s
discretion. In re Appeal of Dunwoody Village, 52 A.3d 408, 424 (Pa. Cmwlth. 2012).
An appeal is frivolous if the realistic chances of success are slight and continuation of
the contest is unreasonable. Waste Mgmt. v. Unemployment Comp. Bd. of Review, 651
A.2d 231, 236 (Pa. Cmwlth. 1994). An appeal is not frivolous merely because it lacks
merit or is unsuccessful. In re Appeal of Dunwoody Village, 52 A.3d at 424; 84 Lumber
Co., L.P. v. Fish Hatchery, L.P., 934 A.2d 116, 118 (Pa. Super. 2007). Rather, the
appeal must have no basis in law or fact. In re Appeal of Dunwoody Village, 52 A.3d
at 424.
             Employer argues that Claimant’s appeal is frivolous because she filed it
for the purpose of reversing the WCJ’s 2008 suspension order.               Employer’s
Application ¶ 16. Although this Court, by order dated June 12, 2019, held that the
2008 suspension order is not properly before this Court, Employer asserts that
Claimant’s counsel nevertheless has “repeatedly burdened this Court” and Employer
with “redundant filings which attempt to advance an argument that is entirely irrelevant
to the pending appeal.” Id. As a result, Employer asserts that Claimant’s counsel’s
filings caused Employer to incur “unnecessary legal expenses” as it had to file


                                           14
“responsive pleadings and motions” to address an irrelevant and moot issue and that
Claimant has no chance of successfully obtaining an order from this Court overturning
the 2008 suspension of her benefits. Id.
              While Employer is correct that this Court’s June 12, 2019 order held that
the 2008 suspension order is not properly before this Court, there was obvious
confusion in this case as to the status of Claimant’s benefits. The Board, in its
November 3, 2011 order remanding the matter to the WCJ for reconstruction of the
record, acknowledged confusion as to whether the WCJ’s 2008 order suspending
Claimant’s benefits remained in effect and “would trump” his 2010 order modifying
Claimant’s benefits. C.R. Item No. 18, Board Opinion and Order at 5. Indeed, the
Board specifically directed the WCJ to clarify the status of Claimant’s benefits on
remand, i.e., to explain whether Claimant’s benefits were suspended or modified, and,
“if necessary, reconsider his decision in its entirety.” Id.
              For reasons that are unclear in the record, the WCJ did not issue a new
decision and order until nearly six years later, on August 24, 2017, holding that the
2008 suspension and 2010 modification orders remained in effect. Claimant could
have viewed the August 24, 2017 order as a new order on suspension, not simply a
statement that the prior order remained in effect. Claimant properly filed a further
appeal with the Board, which was ultimately successful in reversing the modification
of her benefits. Although Claimant’s benefits remained suspended, this does not
render her appeal frivolous under these circumstances. In re Appeal of Dunwoody
Village, 52 A.3d at 424. In light of the confusion surrounding the status of Claimant’s
benefits, the unusual and extensive delay attributable to the WCJ in issuing his decision
after remand, and the discretion afforded to this Court, we decline Employer’s request
for attorneys’ fees under Rule 2744.


                                            15
                                  Conclusion
            Based on the foregoing, we affirm the Board’s order denying Claimant
unreasonable contest attorneys’ fees under Section 440(a) of Act and we deny
Employer’s request for an award of attorneys’ fees against Claimant’s counsel
pursuant to Rule 2744.



                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge




                                      16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Roberta Harris,                         :
                   Petitioner           :
                                        :
            v.                          :
                                        :
Workers’ Compensation Appeal            :
Board (Giant Food Stores),              :   No. 194 C.D. 2019
                  Respondent            :


                                    ORDER


            AND NOW, this 27th day of July, 2020, the January 23, 2019 order of
the Workers’ Compensation Appeal Board is AFFIRMED. Additionally, Giant
Food Stores’ request for attorneys’ fees pursuant to Pennsylvania Rule of Appellate
Procedure 2744 is DENIED.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge
