IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shanada Gilliard, :

Petitioner :

: No. 8 C.D. 2016

v. :

: Submitted: August 5, 2016

Workers’ Compensation Appeal :

Board (Protocall, Inc.), :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: December 20, 2016

Shanada Gilliard (Petitioner) petitions for review of the December 9, 

2015 order of the Workers’ Compensation Appeal Board (Board), which reversed a 

workers’ compensation judge’s (WCJ) decision awarding unreasonable contest 

attorney’s fees, but affirmed the WCJ’s decision in all other aspects. 

Facts and Procedural History

Claimant was hired by Protocall, Inc. (Employer), a temporary agency, 

and placed in a temporary position as a patient service representative. On June 13, 

2013, Claimant suffered a laceration to her left index finger when she attempted to 

remove a heavy-duty staple from a pack of medical records using scissors. Claimant 

was sent to Pennsylvania Hospital, where she received stitches, and was later treated 
2

at WorkNet. Employer issued a notice of temporary compensation payable 

acknowledging Claimant’s work injury and commencing payment of compensation 

benefits. 

On June 25, 2013, Employer offered Claimant a modified duty position 

sorting resumes. Claimant accepted the position and, on June 26, 2013, reported to 

Employer’s location; however, Claimant left early and did not return to work for 

Employer, although light-duty work continued to be available to her. 

On July 9, 2013, Employer issued a notice stopping temporary 

compensation and a notice of compensation denial, indicating that there was no

medical documentation to substantiate total disability beyond June 26, 2013. 

Claimant underwent surgery on August 22, 2013, and, on October 24, 

2013, filed a claim petition seeking total disability benefits from June 13, 2013, and 

ongoing, as well as payment of medical bills and counsel fees. Employer filed an 

answer, denying the material allegations of Claimant’s petition. Employer 

subsequently filed a petition for physical examination, which was granted on May 5, 

2014. 

By letter dated September 3, 2014, Employer offered Claimant a 

position performing front desk work with one of its clients starting September 11, 

2014, and included a notice of ability to return to work. Employer gave Claimant 

$80.00 for transportation costs to and from its client’s location; however, Claimant 

never appeared at the offered job or returned the transportation costs. 

On October 15, 2014, a WCJ conducted a hearing on Claimant’s 

petition. Both Claimant and Employer submitted expert medical testimony. In 

summary, Claimant’s expert, Dr. Caplan, opined that Claimant’s injury rendered her 

incapable of performing her pre-injury position with Employer, “but would allow her 
3

to work in a clerical position that did not require a significant amount of computer 

input, heavy lifting and carrying, and had some form of temperature control.” 

(WCJ’s Finding of Fact at 2.) Conversely, Employer’s expert, Dr. Kelman, testified 

that he would place a ten pound lifting restriction on Claimant’s work; that he would 

not restrict Claimant’s ability to walk around the office, sit, or answer telephones; and 

opined that Claimant could return to her pre-injury job with Employer if she 

completely immobilized her finger. 

WCJ’s Decision

By order dated February 11, 2015, the WCJ granted Claimant’s petition 

for the closed period of June 13, 2013, through June 25, 2013, because Claimant 

sustained a work injury. The WCJ suspended Claimant’s benefits from June 26, 

2013, through August 21, 2013 because Claimant returned to modified, full-duty 

work on June 26, 2013, and abandoned the same for reasons unrelated to her work 

injury. Similarly, the WCJ granted Claimant’s petition for the period of August 22, 

2013, the date of her surgery, through September 10, 2014, but suspended benefits as 

of September 11, 2014, because Employer met its burden of proving that, “as of 

September 11, 2014, Claimant was sufficiently recovered from the work injury to 

return to full time work with restrictions and that such work was available and offered 

to Claimant but Claimant failed to follow up in good faith.” (WCJ’s Conclusion of 

Law at No. 3.) 

The WCJ found credible Claimant’s testimony that she sustained a work 

injury; however, the WCJ specifically rejected as not credible Claimant’s testimony 

that she was unable to perform the modified duty job sorting resumes until her 

August 2013 surgery. The WCJ also found:
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Claimant’s credibility in general is undermined by the fact 

that she had multiple instances of non-compliance with 

medical referrals to therapy and to Dr. Zelouf and 

significant gaps in treatment. Of note, Claimant did not 

receive any medical treatment from September 3, 2013 

when she last saw Dr. Zelouf to February 2014 when she 

first saw Dr. Caplan. Claimant’s testimony regarding why 

she was non-compliant with therapy was internally 

inconsistent. At her deposition she said she did not go to 

therapy due to childcare and transportation issues as well as 

“other responsibilities.” At the hearing, Claimant testified 

that she did not go to therapy because of “insurance.” 

Claimant’s credibility is further undermined by her actions 

with respect to the September 3, 2014 job offer as described 

by the credible and unrebutted testimony of Mr. Fazio and 

Ms. Tistan-McGuire. Claimant’s credibility is undermined 

by her conviction for retail theft in October of 2011.[1]

(WCJ’s Finding of Fact at No. 10.) 

Regarding the medical testimony of Claimant’s expert, Dr. Caplan, and 

Employer’s expert, Dr. Kelman, the WCJ found their testimony substantially similar. 

However, to the extent that their opinions differed, the WCJ found Dr. Kelman more 

credible and persuasive because: Dr. Kelman was a Board-certified orthopedic 

surgeon whereas Dr. Caplan was a plastic surgeon; and Dr. Caplan only saw 

Claimant on a single occasion, eight months after her injury, at the referral of her 

attorney. (WCJ’s Finding of Fact at No. 15.) 

In addition, the WCJ found that Employer’s contest was unreasonable 

because it maintained its denial notwithstanding that WorkNet confirmed that 

 

1 Dr. Zelouf is the surgeon who performed Claimant’s surgery. Dr. Zelouf did not testify but 

generated medical records that the parties’ experts reviewed. (WCJ’s Findings of Fact at Nos. 1-3.) 

Mr. Fazio is Vice President of operations for Employer’s Pennsylvania branches and the author of 

the September 2014 letter. (WCJ’s Finding of Fact at No. 6.) Similarly, Ms. Tistan-McGuire is 

Employer’s corporate administrative assistant. 
5

Claimant sustained a work injury and had to undergo surgery for the same. 

Accordingly, the WCJ directed Employer to pay Claimant’s attorney’s fees. 

Claimant and Employer both appealed the WCJ’s decision to the Board. 

Claimant asserted that, inter alia, Employer’s September 3, 2014 letter was legally 

insufficient to warrant a suspension of benefits because it did not contain enough 

information about the job requirements of the position. Employer argued that the 

WCJ erred in concluding that its contest was unreasonable. 

Board’s Decision

By order dated December 9, 2015, the Board reversed the WCJ’s award 

of unreasonable contest attorney’s fees and affirmed the decision in all other aspects. 

According to the Board, although Employer had knowledge that Claimant had 

sustained a work injury and had to undergo surgery for the same, Employer issued a 

notice of compensation denial asserting that Claimant did not have any disability 

from June 26, 2013, and ongoing. Thus, the Board determined that Employer’s 

contest was reasonable because Claimant’s disability was in dispute. Additionally, 

the Board found persuasive that Employer’s contest disputing Claimant’s disability 

was ultimately successful. 

Regarding Employer’s September 2014 letter, the Board determined that 

it was adequate to meet the standard outlined in Hockenberry v. Workmen’s 

Compensation Appeal Board (Pennsylvania State Police), 672 A.2d 393 (Pa. 

Cmwlth. 1996), because it provided a general job classification and included a basic 

description of the work duties to be performed. As such, the Board determined that 

the WCJ did not err in suspending Claimant’s benefits as of September 11, 2014. 

Claimant appealed the Board’s decision to this Court.
6

On appeal,2 Claimant asserts that the Board erred in affirming the WCJ’s 

decision suspending benefits because Employer’s September 2014 letter did not meet 

the specifics required for an offer of employment pursuant to the standard 

promulgated in Hockenberry. Moreover, Claimant argues that Employer failed to 

meet its burden of establishing that the job offer was within Claimant’s medical 

restriction because the letter’s author stated that he did not review the medical reports 

or know Claimant’s medical restrictions. Additionally, Claimant argues the Board’s 

decision to reverse the WCJ’s award of attorney’s fees was erroneous because 

Employer denied all aspects of Claimant’s injury notwithstanding evidence in its 

possession amounting to “strict proof” of the same. (Petitioner’s brief at 7.) 

Conversely, Employer argues that the Board’s decision suspending 

Claimant’s benefits was proper because there is no requirement that the author of a 

job referral letter review medical reports before offering the position. Moreover, 

Employer argues that it acted within its rights to litigate Claimant’s disability and the 

Board’s decision reversing the WCJ’s award of attorney fees was proper. 

Discussion

Generally, an employer must meet the following requirements to 

suspend a claimant’s benefits:

1. The employer who seeks to modify a claimant’s benefits 

on the basis that he has recovered some or all of his ability 

must first produce medical evidence of a change in 

condition.

 

2 Our scope of review is limited to determining whether an error of law occurred, whether 

constitutional rights have been violated, or whether necessary findings of fact are supported by 

substantial evidence. Hockenberry v. Workmen’s Compensation Appeal Board (Pennsylvania State 

Police), 672 A.2d 393, 395 n.4 (Pa. Cmwlth. 1996). 
7

2. The employer must then produce evidence of a referral 

(or referrals) to a then open job (or jobs), which fits in the 

occupational category for which the claimant has been 

given medical clearance, e.g., light work, sedentary work, 

etc.

3. The claimant must then demonstrate that he has in good 

faith follow through on the job referral(s).

4. If the referral fails to result in a job then claimant’s 

benefits should continue. 

Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 532 

A.2d 374, 380 (Pa. 1987).3 

An employer may establish its entitlement to a suspension or 

modification of benefits by referring a claimant to an available position as required 

by Kachinski. City of Pittsburgh v. Workers’ Compensation Appeal Board 

(Robinson), 4 A.3d 1130, 1134 (Pa. Cmwlth. 2010). If the employee has not been 

previously employed in the referred position, the employer must provide information 

related to the job duties and classification “so that the claimant can make an informed 

decision regarding whether the position offered is within her capabilities.” Eidem v. 

Workers’ Compensation Appeal Board (Gnaden-Huetten Memorial Hospital), 746 

A.2d 101, 104 (Pa. 2000). In other words, a job referral must provide the claimant 

with a general job classification or state whether the job is within a category for 

 

3 Although Kachinski was superseded, in part, when the General Assembly amended Section 

306(b) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 

P.S. §512, to add subsection (2) in 1996, Riddle v. Workers’ Compensation Appeal Board 

(Allegheny City Electric, Inc.), 981 A.2d 1288, 1292-93 (Pa. 2009), Kachinski “is still applicable in 

situations where an employer seeks a modification of benefits based on an offer of a specific job 

with the employer.” South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 

806 A.2d 962, 968 (Pa. Cmwlth. 2002). 
8

which the claimant has received medical clearance, along with a basic description of 

the job. Hockenberry, 672 A.2d at 396-97; Four-Way Construction Company v. 

Workmen’s Compensation Appeal Board (Snyder), 536 A.2d 873, 874 (Pa. Cmwlth. 

1988). 

“It is clear that the employer need not specify every aspect of the job in 

question, since in Kachinski this court explicitly rejected such a hypertechnical 

approach to reviewing these referrals.” Eidem, 746 A.2d at 104. “Rather, the referral 

should be reviewed in a common sense manner in order to determine whether a 

suitable position has been made available to the claimant.” Id. “The burdens 

imposed on employers in regard to job referrals are not onerous.” School District of 

Philadelphia v. Workmen’s Compensation Appeal Board (Stutts), 603 A.2d 682, 686 

(Pa. Cmwlth. 1992). 

According to Claimant, Employer’s September 2014 letter did not meet 

the standard promulgated in Hockenberry because the author acknowledged that he 

was not aware of the medical restrictions placed on Claimant by her physician; the 

letter made no mention of a specific job being offered; and the letter did not state how 

guidelines provided by Claimant’s physician were used to identify an appropriate 

work assignment. Thus, Claimant maintains, the September 2014 letter is virtually 

the same as the letter rejected in Hockenberry. 

In Hockenberry, after the claimant suffered a work injury, her doctor 

advised that she could return to work only if her job duties did not require kneeling, 

working overhead for long periods of time, or working with her head fully flexed for 

long periods. Subsequently, the employer sent the claimant a letter stating:

[Y]ou [are] ordered to report to work on May 16, 1990 at 

8:15 a.m.
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Arrangements have been made to provide you with duties 

which will accommodate the physical limitations detailed in 

the medical reported dated April 16, 1990 . . . . The report 

states ‘The patient may perform all duties of her job with 

the exception of A) Kneeling. B) Working over heads for 

long periods. C) Working with the head fully flexed for 

long periods.’

672 A.2d at 395.

Notwithstanding the letter, the claimant did not report to work, employer 

terminated the claimant for abandoning her job, and the claimant filed a claim 

petition seeking compensation benefits. On appeal to this Court, we determined that 

the employer’s letter was not sufficient notice to the claimant of existing available 

work because it “merely states that an alternative position had been arranged which 

would accommodate her physical limitations as detailed by her physician. It failed to 

provide any descriptive information about the available job or its duties; such 

information is essential to her in making an informed choice about the job referral.” 

Id. at 397 (emphasis added). We concluded that a job referral must include “a 

general job classification and a basic description of the job.” Id. 

Here, Employer’s September 2014 letter to Claimant advised, in 

pertinent part, that: it had been notified by Claimant’s physician that she has been 

cleared to return to work; it used guidelines provided by Claimant’s physician to 

identify an appropriate transitional duty work assignment; and Claimant’s modified 

job duties will consist of front desk work, answering phones, data entry, filing, and 

working with clients. (WCJ’s Finding of Fact at No. 6.) As Eidem instructs, 

Employer need not specify every aspect of the job in question; rather, the referral 

should be reviewed in a common sense manner. Employer’s letter contains a general 

job classification of modified, transitional duty work, states that it worked with 

Claimant’s physician to identify an appropriate position, and provides a basic 
10

description of the modified job’s duties. Contrary to the letter in Hockenberry, 

Employer’s letter provides specific, descriptive information regarding the job 

sufficient to enable Claimant to make an informed choice about the referral. Indeed, 

Claimant’s own conduct indicates the suitability of the referral: Claimant appeared at 

Employer’s office building; requested and accepted money for transportation to the 

referred job, but never appeared for the same. The fact that Claimant accepted funds 

for transportation to the referred job in anticipation of performing the same 

demonstrates that the letter enabled her to make an informed choice about whether

the referral was within her capabilities.

Moreover, Claimant’s assertions that the September 2014 letter was 

insufficient because its author stated that he did not review her medical reports or 

know Claimant’s medical restrictions and the letter did not state how Claimant’s 

physician’s guidelines were taken into account when identifying an appropriate 

assignment lacks merit. The purpose of requiring essential information in job 

referrals is to provide a claimant with notice of work within his or her restrictions. 

See School District of Philadelphia, 603 A.2d at 686. The focus of the inquiry is on 

the content of the referral, not the procedures that were used to generate it. Thus, 

Claimant’s argument is unpersuasive. 

Therefore, we discern no error in the Board’s determination that 

Employer’s September 2014 letter complied with the standard promulgated in 

Hockenberry and was sufficient to advise Claimant of work within her restrictions 

because it contained a general job classification, stated that the job was within a 

category for which Claimant had received medical clearance, and provided a basic 

description of the job’s duties. 
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Attorney’s Fees

Section 440 of the Law, added by the Act of February 8, 1972, P.L. 25, 

77 P.S. §996(a), states:

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 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). 

“The award of attorney’s fees is the rule in worker’s [sic] compensation 

cases, and their exclusion is the exception which is applied only in cases where the 

employer has presented sufficient evidence to establish the reasonable basis for its 

contest.” General Carbide Corporation v. Workmen’s Compensation Appeal Board 

(Daum), 671 A.2d 268, 270 (Pa. Cmwlth. 1996). The employer bears the burden of 

presenting sufficient evidence to establish that its contest was reasonable. Pruitt v. 

Workers’ Compensation Appeal Board (Lighthouse Rehabilitation), 730 A.2d 1025, 

1028 (Pa. Cmwlth. 1999). “Reasonableness of an employer’s contest depends upon 

whether the contest was prompted to resolve a genuinely disputed issue or merely to 

harass the claimant.” McGuire v. Workmen’s Compensation Appeal Board (H.B. 

Deviney Company, sub. of J.M. Smucker Co.), 591 A.2d 372, 374 (Pa. Cmwlth. 

1991). 
12

“[A]n employer may contest a claim in order to ascertain the proper 

period of disability.” Striker v. Workmen’s Compensation Appeal Board (California 

University of Pa.), 650 A.2d 1109, 1111 (Pa. Cmwlth. 1994). Similarly, “[t]he 

existence of an issue of the degree of disability may provide a reasonable basis for an 

employer’s contest.” Pruitt, 730 A.2d at 1028; see also Varghese v. Workmen’s 

Compensation Appeal Board (M. Cardone Industries), 573 A.2d 630, 633 (Pa. 1990) 

(holding that conflicting medical evidence regarding the extent of the claimant’s 

disabilities forms a reasonable basis for the contest). Whether an employer’s contest 

is reasonable for purposes of an award of attorney’s fees is a question of law fully 

reviewable by this Court. Pruitt, 730 A.2d at 1025. 

Claimant argues that the Board erred in reversing the WCJ’s award of 

unreasonable contest attorney’s fees because Employer had medical evidence 

indicating that Claimant suffered a work injury and required surgery. Therefore, 

according to Claimant, there was no dispute regarding the nature of Claimant’s work 

injury or whether it was causally related to her work duties. 

Here, Claimant is correct that there was no dispute regarding the nature 

of Claimant’s work injury or whether it was causally related to her work duties. 

However, Employer’s contest was related to the degree and period of Claimant’s 

disability, which is a reasonable basis for a contest. Although Employer was aware 

that Claimant sustained a work injury and required surgery for the same, this 

information had no bearing on Claimant’s degree or period of disability. Moreover, 

the record lacks evidence indicating that the purpose of Employer’s contest was to 

harass Claimant. Indeed, Employer was ultimately successful, in part, in disputing 

Claimant’s degree and period of disability. See Volterano v. Workmen’s 

Compensation Appeal Board (Allied Corporation and Travelers Insurance 
13

Company), 613 A.2d 61, 65 (Pa. Cmwlth. 1992) (holding that the employer’s success 

in disputed workers’ compensation claim made contest per se reasonable). 

Therefore, we discern no error in the Board’s determination to reverse the WCJ’s 

award of unreasonable contest attorney’s fees. 

Accordingly, the Board’s order is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shanada Gilliard, :

Petitioner :

: No. 8 C.D. 2016

v. :

:

Workers’ Compensation Appeal :

Board (Protocall, Inc.), :

Respondent :

ORDER

AND NOW, this 20th day of December, 2016, the December 9, 2015 

order of the Workers’ Compensation Appeal Board is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge