       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicholas Miloro,                       :
                                       :
                   Petitioner          :
                                       :
                   v.                  :
                                       :   No. 1262 C.D. 2016
Workers’ Compensation Appeal           :   Submitted: November 23, 2016
Board (Department of Veterans          :
Affairs and Inservco Insurance         :
Services),                             :
                                       :
                   Respondents         :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                FILED: January 20, 2017

            Nicholas Miloro (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that affirmed the decision of a
Workers’ Compensation Judge (WCJ) denying his request for unreasonable contest
attorney fees with respect to a petition to modify benefits filed by the
Commonwealth of Pennsylvania (Employer). We affirm.
            Claimant sustained a low back injury and herniated disc at the L5
level in 2002 in his employment with Employer and began receiving total
disability benefits of $347.38 per week under the Workers’ Compensation Act (the
Act)1 for that injury. (WCJ Decision Finding of Fact (F.F.) ¶1.) Prior to the
proceedings at issue here, Claimant’s benefits were modified to partial disability
benefits based upon an impairment rating evaluation and the amount of Claimant’s
benefits was reduced to $185.08 per week to account for Claimant’s receipt of a
pension for which Employer was entitled to an offset. (Id. F.F. ¶¶2-3.)
                 On July 16, 2014, Employer filed a modification petition seeking to
reduce Claimant’s disability benefits based on a labor market survey in accordance
with Section 306(b)(2) of the Act.2 This petition was based on the medical opinion
of Dr. Berman, an orthopedic surgeon who examined Claimant on Employer’s
behalf, and Mr. Kushner, a vocational expert who evaluated Claimant for
Employer and identified four employment opportunities that were approved by Dr.
Berman as within Claimant’s physical abilities. The WCJ held a hearing on the
modification petition at which Claimant testified and received testimony by trial
deposition of four witnesses: Dr. Berman and Mr. Kushner, Claimant’s treating
neurologist, who testified that Claimant was not capable of returning to work in
any capacity, and a vocational expert retained by Claimant, who testified that the
positions identified by Mr. Kushner were not within Claimant’s physical
limitations. (WCJ Decision F.F. ¶¶5-9.) Claimant’s counsel also submitted a
quantum meruit attorney fee statement and requested that the WCJ award attorney
fees for his work opposing the modification petition.
                 On October 1, 2015, the WCJ issued a decision denying Employer’s
modification petition. The WCJ found the testimony of Claimant and his treating

1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2
    Added by the Act of June 24, 1996, P.L. 350, No. 57, § 4, as amended, 77 P.S. § 512(2).


                                                 2
neurologist and vocational expert credible, and rejected the testimony of Dr.
Berman and Mr. Kushner as not credible to the extent that their testimony
conflicted with the testimony of Claimant’s experts. (WCJ Decision F.F. ¶¶10-13.)
Based on these credibility findings, the WCJ held that Employer failed to satisfy its
burden of proving that Claimant had earning power sufficient to support a
modification of his benefits. (Id. Conclusions of Law ¶¶2-3.) The WCJ also ruled
that Employer established a reasonable basis for contest and denied Claimant’s
counsel’s request for attorney fees, noting that “[h]ad I credited Dr. Berman’s
testimony that Claimant could perform light duty work with additional
modifications, and had I credited Mr. Kushner’s testimony that in his experience
such additional modifications could be accommodated by two of the potential
employers, Employer would have prevailed in this matter.”                    (Id. F.F. ¶15.)
Claimant appealed the denial of attorney fees to the Board. Employer did not
appeal the denial of its modification petition. On July 1, 2016, the Board affirmed
the WCJ’s decision. Claimant now appeals the Board’s affirmance of the denial of
attorney fees to this Court.3
                 Section 440(a) of the Act4 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

3
  Our review is limited to determining whether there has been any error of law or violation of
Board procedures or constitutional rights, and whether the WCJ’s necessary findings of fact are
supported by substantial evidence. Thompson v. Workers’ Compensation Appeal Board (Cinema
Center), 981 A.2d 968, 972 n.4 (Pa. Cmwlth. 2009). The issue here, whether Employer’s
litigation of its modification petition was a reasonable contest, is a question of law fully
reviewable by this Court. Thompson, 981 A.2d at 973.
4
    Added by the Act of February 8, 1972, P.L. 25.


                                                 3
            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 addition to the award for compensation, a
            reasonable sum for costs incurred for attorney’s fee,
            witnesses, necessary medical examination, and the value of
            unreimbursed lost time to attend the proceedings: Provided,
            That cost for attorney fees may be excluded when a
            reasonable basis for the contest has been established by the
            employer or the insurer.

77 P.S. § 996(a) (emphasis added). The burden of establishing a reasonable basis
for the contest is on the employer. Thompson v. Workers’ Compensation Appeal
Board (Cinema Center), 981 A.2d 968, 973 (Pa. Cmwlth. 2009); Costa v. Workers’
Compensation Appeal Board (Carlisle Corp.), 958 A.2d 596, 601-02 (Pa. Cmwlth.
2008); Striker v. Workmen’s Compensation Appeal Board (California University of
PA), 650 A.2d 1109, 1111 (Pa. Cmwlth. 1994). This burden is satisfied and
attorney fees are properly denied to a prevailing claimant where the parties’
evidence is conflicting and where the employer’s contest was brought to resolve a
genuinely disputed factual or legal issue. Thompson, 981 A.2d at 973; Costa, 958
A.2d at 602; Schachter v. Workers’ Compensation Appeal Board (SPS
Technologies), 910 A.2d 742, 746 (Pa. Cmwlth. 2006); Striker, 650 A.2d at 1111.
            Claimant argues that Employer’s evidence was insufficient to support
its modification petition even if found credible and that there was therefore no
genuine dispute that could make its contest reasonable. We do not agree.
            Claimant bases his argument on the contentions that Employer’s
medical expert, Dr. Berman, testified that Claimant would need breaks every one
to two hours and that none of the jobs identified by Employer’s vocational expert
satisfied this requirement.   These assertions, however, are not an accurate
characterization of the evidence that Employer presented to the WCJ. Dr. Berman
                                        4
testified that the breaks that Claimant would need consisted only of the ability to
stand up and walk briefly and Dr. Berman specifically approved the four positions
identified by Mr. Kushner as jobs that Claimant was capable of performing.
(Employer Ex. E, Berman Dep. at 21-22, 25-26 & Ex. C thereto, Reproduced
Record (R.R.) at 21a-22a, 25a-26a, 73a-80a.) The job description for the position
of sales representative at Progressive Business Publications expressly provided for
“breaks as needed throughout the day.” (Employer Ex. E, Berman Dep. Ex. C,
R.R. at 73a.) In addition, all four job descriptions provided that the employee
could change position from sitting to standing while working: the job descriptions
for Progressive Business Publications and the New Pig Energy customer service
specialist stated that “[t]he employee may change positions as needed by sitting or
standing at the work station as desired” and the descriptions for the positions of
cashier at Lowe’s and Walmart stated that “[s]itting and standing will occur
intermittently through the work shift and at the employees discretion” and that
“[c]hange of position between sitting and standing during the shift would occur at
the discretion of the employee.” (Id., R.R. at 73a, 75a, 77a, 79a.) Moreover, Mr.
Kushner testified that he knows from personal experience dealing with Lowe’s and
Walmart that those two employers make accommodations for employee
disabilities. (Employer Ex. F, Kushner Dep. at 13-14, 16-17, R.R. at 97a-98a,
100a-101a.)    Employer’s evidence, if found credible, was therefore sufficient to
prove that Claimant had earning power that could support a modification of his
benefits.
              While Employer failed to prove that Claimant had earning power, that
was because the WCJ found Claimant and his expert witnesses more credible than
Dr. Berman and Mr. Kushner, not because Employer’s evidence was legally


                                         5
insufficient.   (WCJ Decision F.F. ¶¶10-13, 15.)        Because the medical and
vocational expert testimony conflicted and Employer’s modification petition
involved a genuine factual dispute, Employer’s contest was reasonable and
attorney fees were properly denied. Thompson, 981 A.2d at 973; Costa, 958 A.2d
at 602; Schachter, 910 A.2d at 746-47; Striker, 650 A.2d at 1111. We therefore
affirm the order of the Board.


                                       ____________________________________
                                       JAMES GARDNER COLINS, Senior Judge


Judge Hearthway did not participate in the decision of this case.




                                         6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nicholas Miloro,                      :
                                      :
                   Petitioner         :
                                      :
                   v.                 :
                                      :   No. 1262 C.D. 2016
Workers’ Compensation Appeal          :
Board (Department of Veterans         :
Affairs and Inservco Insurance        :
Services),                            :
                                      :
                   Respondents        :
                                 ORDER


            AND NOW, this 20th day of January, 2017, the order of the Workers’
Compensation Appeal Board in the above matter is AFFIRMED.




                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge
