Dissenting Opinion by
Judge Mencer,March 5, 1975:
I respectfully dissent to the majority’s reversal of the referee’s award of attorney’s fees. The majority takes this action as a result of an interpretation of Section 440 of The Pennsylvania Workmen’s Compensation Act1 *538which I believe is contrary to the plain meaning of the language used by the Legislature.
Section 440 reads in pertinent part as follows: “In any contested case where the insurer has contested liability in whole or in part, the employe or his dependent, as the case may be, in whose favor the matter at issue has been finally determined shall be awarded, in addition 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.. ..” (Emphasis added.)
The majority interprets Section 440 to mean that a referee cannot award attorney’s fees when the record discloses a reasonable basis for the employer’s contest of the claim. This construction ignores the clear meaning of the word “may” in the proviso of Section 440 and substitutes for it the word “shall” or “must.”
I interpret Section 440’ to mean that, when a claimant is successful in a contested case, he shall be awarded attorney’s fees. I construe the use of the words “may exclude” in the proviso to mean exactly that; namely, that when a reasonable basis for the contest has been established by the defendant, attorney’s fees may be excluded, but they also may be awarded by the referee. Such an award2 is not subject to our review as an abuse of discretion.
Judges Crumlish, Jr. and Blatt join in this dissent.. Act of June 2, 1915, P.L. 736, art. IV, §440, added February 8, 1972, P.L. 25, No. 12, §3, 77 P.S. §996.
. The reasonableness of the sum awarded for attorney’s fees is subject to our review. Likewise, whether there is a reasonable basis for the contest is a proper subject of review where attorney’s fees are excluded.