IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sonya Privette-James, : Petitioner : : v. : No. 1906 C.D. 2013 : Submitted: March 28, 2014 Workers' Compensation Appeal : Board (University of Pennsylvania), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: June 5, 2014

Sonya Privette-James (Claimant) petitions for review of an order of

the Workers' Compensation Appeal Board (Board) that affirmed a decision of a

workers' compensation judge (WCJ) granting two modification petitions filed by

Claimant’s employer, the University of Pennsylvania (Employer). The WCJ

modified Claimant’s benefits from total to partial disability based upon a whole

body impairment rating of four percent under Section 306(a.2) of the Workers'

Compensation Act (Act).1 The WCJ also modified Claimant’s weekly benefits as

of November 24, 2010, based on an established earning capacity of $400.00 per

week as of that date. In addition, the WCJ denied Claimant’s petition to review

compensation benefits (review petition) seeking to amend the description of injury

to include a cervical injury. Claimant advances several arguments in support of

1 Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,

77 P.S. §511.2.

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her contention that the WCJ erred by granting Employer’s modification petitions

and by failing to grant her review petition.

For the reasons that follow, we vacate the Board’s order to the extent

it determined Employer not liable for the payment of Claimant’s cervical surgery,

and we remand for further proceedings related to Claimant’s equitable estoppel

claim for payment of her unpaid medical bills. In all other respects, we affirm.

I. Background

A. Work Injury; NCP; IRE

Claimant worked for Employer as a sterilization attendant. Her

responsibilities included sterilizing dental instruments for the clinics at Employer’s

Dental School. Claimant’s duties included moving heavy objects weighing up to

100 pounds.

In June 2006, Claimant sustained a work injury while loading a 50-

pound basket of dental instruments into a six-foot tall sterilizing machine Claimant

identified as a “hummer miller.” See Notes of Testimony (N.T.), 6/14/11, at 6-8.

Employer issued a notice of temporary compensation payable, which thereafter

converted to a notice of compensation payable (NCP). The NCP described

Claimant’s injury as partial tears of the right shoulder. The NCP awarded

Claimant weekly indemnity benefits of $372.50 based on an average weekly wage

of $514.10.

3

In May 2010, Dr. F. Scott Carlin (IRE Physician), performed an

impairment rating evaluation (IRE) of Claimant. IRE Physician’s report

documented the history Claimant provided regarding her work injury and medical

treatment. Claimant presented with pain in her shoulders, neck and upper back. In

particular, Claimant reported pain in her right shoulder and down her right arm,

numbness and tingling in her right hand, and decreased strength in her right arm.

IRE Physician opined Claimant reached maximum medical

improvement (MMI) for her shoulders. The doctor diagnosed a right full thickness

rotator cuff tear and right posterior labral tear. IRE Physician also diagnosed

cervical disc herniations and cervical radiculopathy. However, the doctor

remarked that he performed the IRE for the right shoulder injury only.

Using the Sixth Edition of the American Medical Association’s

Guides to the Evaluation of Permanent Impairment, IRE Physician determined

Claimant had an upper extremity impairment of seven percent and a whole person

impairment of four percent. IRE Physician noted in his report that if Claimant’s

cervical spine injuries were accepted as part of the compensable injury, the IRE

rating would change.

B. Petitions

In July 2010, Employer filed a modification petition seeking a change

in Claimant’s disability status from total to partial based on the IRE showing a

whole person impairment of four percent. Claimant filed an answer denying

Employer’s material allegations.

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In August 2010, Claimant filed a review petition alleging that in

addition to her right shoulder injuries, she suffered work-related injuries to her

cervical spine. Employer filed an answer denying Claimant’s allegations.

In February 2011, Employer filed a modification/suspension petition

based on a labor market survey. Employer alleged Claimant could perform light

duty positions generally available in the job market ranging from $318.75 to

$730.77, for an average wage of $534.76 per week. In light of Claimant’s average

weekly wage of $514.10, Employer asserted Claimant’s benefits should be

suspended or, at a minimum, reduced.

C. Evidence

1. IME Physician

Regarding Claimant’s alleged cervical injuries, Employer presented

the testimony of Dr. Stephen L. Fedder (IME Physician), a board certified

neurosurgeon. IME Physician performed an independent medical evaluation

(IME) of Claimant in December 2010. IME Physician’s examination indicated

Claimant had a normal cervical range. Her neurological examination was also

normal.

Ultimately, IME Physician opined Clamant did not sustain a cervical

injury as a result of the June 2006 work incident. Rather, IME Physician opined,

Claimant’s 2007 and 2009 MRIs reflect the progression of a degenerative disease

clearly unrelated to any trauma. He further opined Claimant did not sustain a

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neurological injury as a result of the 2006 work incident, and Claimant’s 2010

cervical surgery was unrelated to her work injury. In addition, IME Physician

opined Claimant did not sustain any injury to her spinal architecture, nerve roots or

spinal cord. Claimant’s symptoms did not correlate with a C-5 radiculopathy.

Nonetheless, IME Physician opined, based on the records reviewed,

the history obtained from Claimant, and his physical examination of her, that

Claimant sustained a work-related pectoral girdle strain. IME Physician also

acknowledged that his affidavit of recovery indicated a work-related cervical

strain. However, IME Physician opined, Claimant recovered from her cervical and

pectoral girdle strains.

2. Employer’s Orthopedist

Regarding Claimant’s right shoulder condition, Employer presented

the testimony of Dr. L. Richard Trabulsi (Employer’s Orthopedist), a board

certified orthopedic surgeon. Employer’s Orthopedist examined Claimant in

September 2008, May 2009 and March 2010. In reviewing Claimant’s history,

Employer’s Orthopedist noted that following her injury, her treating physicians

ordered a right shoulder MRI in 2006, not a cervical spine MRI.

As of his March 2010 examination, Employer’s Orthopedist

diagnosed Claimant’s work injury as a full thickness un-displaced rotator cuff tear

of the infraspinatus tendon, and a small glenoid labrum tear. Otherwise,

Claimant’s right shoulder examination results were normal. Employer’s

Orthopedist opined Claimant could return to work with lifting restrictions.

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Although Employer’s Orthopedist did not offer any cervical opinions

in his three reports, he did examine Claimant’s cervical spine during all three

examinations. Employer’s Orthopedist had no objective findings concerning

Claimant’s cervical spine. Rather, he found Claimant’s cervical spine normal, with

some degenerative findings on the MRIs attributable to natural causes, mostly age.

3. Vocational Expert

As to Claimant’s earning capacity, Employer presented the testimony

of Phillip E. Hess (Vocational Expert), a certified disability management specialist

and rehabilitation counselor. Vocational Expert reviewed Employer’s

Orthopedist’s medical report, interviewed Claimant, and performed a transferable

skills analysis. He also prepared a 2010 job analysis of nine available jobs in the

local area within Claimant’s qualifications and restrictions. In February 2011,

Employer’s Orthopedist approved each of the nine jobs. Vocational Expert then

created a labor market survey report. The salaries for the available jobs ranged

from $318.75 to $730.77 per week. Ultimately, Vocational Expert testified the

majority of the jobs paid an average of $400.00 per week. Therefore, he opined

Claimant could earn at least $400.00 per week.

4. Claimant

In support of her review petition, Claimant testified on her own behalf

and presented the testimony of Dr. Frederick Lieberman (Claimant’s Orthopedist),

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a board certified orthopedist and one of Claimant’s treating physicians.2 Claimant

recalled that she performed heavy lifting all day on the date of her work injury.

While carrying a large basket filled with approximately 20 trays and miscellaneous

dental instruments, which weighed about 50 pounds, Claimant experienced pain in

her back and shoulders, and into her arms. By the next day, she had back spasms

and could not hold up her arms.

Following her injury, Claimant worked light duty, handling smaller

trays, for about six months, until December 2006. At that time, Claimant began

receiving treatment for her cervical spine. Claimant’s chiropractor, Dr. David

Paolini (Chiropractor), began treating her and removed her from work.

Chiropractor referred her to Claimant’s Orthopedist, who took over her care in

January 2007. In 2010, Claimant’s Orthopedist referred Claimant to Dr. Tariq S.

Siddiqi (Claimant’s Surgeon) for cervical surgery.

Claimant underwent cervical surgery in July 2010. As a result of the

surgery, Claimant’s pain substantially eased. However, Claimant’s range of

motion remained restricted as a result of screws placed in her neck. Further,

Claimant indicated she still has a partial tear in her shoulder. Her shoulder still

hurts and she cannot carry heavy items. As such, Claimant testified she did not

think she could return to her pre-injury job.

2 Claimant also submitted the testimony of a trained occupational therapist, Mona K.

Wilson (Occupational Therapist), who attended Claimant’s examination by IME Physician.

Occupational Therapist recalled that IME Physician failed to perform certain tests, including a

brachial plexus impingement test, a compression test of the neck, and an abduction or flexion

range of motion of the shoulders. In addition, Occupational Therapist testified that IME

Physician did not perform any strength testing.

8

Claimant further testified Employer’s workers’ compensation insurer,

PMA Companies (Insurer), paid for her neck treatment up to and including pre-

approval for her cervical surgery. However, despite pre-approval, Insurer refused

to pay for Claimant’s surgery, which left Claimant responsible for more than

$100,000 in medical bills.

5. Claimant’s Orthopedist

Claimant’s Orthopedist testified he first examined Claimant in

January 2007 on a referral. He also reviewed a 2006 MRI of Claimant’s right

shoulder, which was positive for a posterior labral tear of the infraspinatus tendon

at its insertion, as well as supraspinatus tendinopathy.

Claimant’s Orthopedist also ordered a cervical MRI, which showed

C3-4 and C4-5 disc protrusions, which the doctor believed were actually disc

herniations. Ultimately, Claimant’s Orthopedist diagnosed Claimant’s neck and

shoulder condition as: herniated discs at C3-C4-5; radiculopathy at C3-4-5 on the

left and at C3-4-5-6-7 on the right; radial nerve involvement; a right suprascapular

nerve injury; neurapraxia; a dorsal scapular nerve injury; a right labral tear and tear

of the infraspinatus tendon. He opined that Claimant’s neck and shoulder

problems were causally related to her June 2006 work injury. He further opined

Claimant could not return to her pre-injury job because of the heavy lifting

required.

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In addition, Claimant’s Orthopedist testified regarding Claimant’s

cervical surgery. In July 2010, Claimant’s Surgeon performed a cervical

discectomy at C3-4 and C4-5 level, along with bilateral foraminotomies.

Claimant’s surgery resulted in a positive outcome. However, Claimant retained a

plate and two screws in her neck, which restrict her mobility. Claimant also

remains a candidate for shoulder surgery.

D. WCJ’s Decision

1. Review Petition – Cervical Injury

In her decision, the WCJ accepted the testimony of Employer’s

Orthopedist and IME Physician, and IRE Physician’s report, as more credible and

persuasive than any contrary testimony of Claimant’s Orthopedist. WCJ’s Op.,

6/5/06, Finding of Fact (F.F.) No. 16. To that end, the WCJ accepted the testimony

of Employer’s Orthopedist, IME Physician, and IRE Physician as fact. Id. The

WCJ also observed that Claimant did not begin treating for her neck injury until

December 2006, six months after her work injury. F.F. No. 16(a).

The WCJ further found IME Physician’s testimony inconsistent with

that of Employer’s Orthopedist as to whether Claimant sustained any neck injury,

such as a cervical strain. To that end, the WCJ accepted Employer’s Orthopedist’s

testimony, that Claimant did not sustain a neck injury, as more credible and

persuasive than any contrary testimony of IME Physician. F.F. No. 16(c). The

WCJ noted Employer’s Orthopedist examined Claimant on three occasions, each

of which was closer to the injury than IME Physician’s examination. Id.

Consequently, the WCJ made the following finding:

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Based on the credited testimony of [Employer’s Orthopedist] and [IME Physician], the work related tears of the right shoulder sustained by Claimant are more specifically described as a partial thickness tear of the infraspinatus [tendon] without retraction and a tear of the posterior glenoid. These are the only injuries sustained by Claimant in the course of her employment with [Employer].

F.F. No. 19 (emphasis added).

Further, the WCJ specifically rejected Claimant’s Orthopedist’s

cervical diagnoses and determined Claimant did not sustain any herniated cervical

discs or cervical radiculopathy, or any cervical injuries in the course of her

employment with Employer. F.F. No. 20. Therefore, the WCJ denied Claimant’s

review petition seeking to expand the NCP’s description of injury to include a

cervical injury.

2. Modification Petition - IRE

In addition, the WCJ credited IRE Physician’s opinion that Claimant

reached MMI for her shoulders as of his May 2010 examination. F.F. No. 21;

Conclusion of Law (C.L.) No. 6. The WCJ also credited IRE Physician’s

determination that Claimant had a whole body impairment of four percent. C.L.

No. 7.

In so doing, the WCJ found IRE Physician’s opinions were supported

by his physical examination of Claimant, and the records and studies he reviewed.

F.F. No. 16(f). Further, the WCJ found IRE Physician’s opinion regarding MMI

supported by Employer’s Orthopedist’s March 2010 opinion that Claimant’s right

shoulder condition did not change from his earlier May 2009 examination. Id.

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Therefore, the WCJ granted Employer’s petition and modified

Claimant’s disability status from total to partial for a 500-week period beginning

May 18, 2010.

3. Modification Petition – Earning Capacity

The WCJ also found Vocational Expert’s testimony credible and

accepted it as fact. F.F. No. 18. Therefore, the WCJ determined Claimant had an

earning capacity of $400.00 per week as of November 24, 2010. Accordingly, the

WCJ modified Claimant’s weekly benefit rate from $372.50 to $76.01 as of that

date for the remainder of the 500-week partial disability period, which began to run

in May 2010.

E. Board’s Decision

In a comprehensive opinion, the Board affirmed. Claimant petitions

for review.3

II. Issues

Claimant presents four issues for review, primarily concerning her

denied review petition and Employer’s granted modification petition based on

earning capacity.

3 This Court’s review is limited to determining whether the WCJ’s findings of fact were

supported by substantial evidence, whether an error of law was committed or whether

constitutional rights were violated. 2 Pa. C.S. §704; Phoenixville Hosp. v. Workers' Comp.

Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).

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First, Claimant contends the WCJ erred in reducing the amount of

Claimant’s benefits based on jobs identified in a labor market survey where

Vocational Expert failed to testify that the survey jobs were actually open and

available; and, where Insurer’s claims adjuster instructed Vocational Expert not to

contact Employer about any available positions, in violation of Section 306(b)(2)

of Act and its regulations.

Second, Claimant contends the WCJ erred in denying Claimant’s

review petition seeking recognition of a cervical injury based on Employer’s

Orthopedist’s opinions where Employer retained the doctor solely to examine

Claimant’s right shoulder injury. Similarly, Claimant argues the WCJ capriciously

disregarded the cervical opinions of IME Physician and Claimant’s Orthopedist,

who both agreed that Claimant’s work injury included a cervical injury.

Third, Claimant asserts the WCJ and the Board erred in failing to

order Employer estopped from denying the work-related nature of Claimant’s

cervical spine injury where: (1) Employer paid all of Claimant’s medical expenses

for her neck injury, thereby lulling Claimant into believing Employer accepted a

cervical injury; and, (2) Employer pre-approved Claimant’s cervical surgery as

work-related before rejecting the post-surgical bills, which totaled more than

$100,000.00.

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Fourth, Claimant contends the WCJ erred in overruling her objections

to the introduction of IME Physician’s deposition testimony where he admitted he

shredded all the records he reviewed prior to his deposition.

III. Discussion

A. Modification – Labor Market Survey

1. Survey Positions

Claimant first contends the WCJ erred in granting Employer’s

modification petition based upon Vocational Expert’s labor market survey where

Vocational Expert failed to testify that the jobs identified in the labor market

survey were actually available, in accord with our Supreme Court’s recent decision

in Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap), 81

A.3d 830 (Pa. 2013).

Claimant further argues Vocational Expert failed to comply with

Department of Labor and Industry regulations governing the conduct of vocational

experts in performing earning power assessments pursuant to Section 306(b)(2) of

the Act, 77 P.S. §512(2). In particular, Claimant asserts Vocational Expert

violated 34 Pa. Code §123.204(c), which provides (with emphasis added):

A vocational expert who authors additional written reports, including earning power assessments or labor market surveys, shall simultaneously serve copies of these written reports upon the employee and counsel, if known, when the expert provides the written reports to the insurer or its counsel.

Citing Phoenixville Hospital, Claimant asserts there is no record or

findings of fact demonstrating that any of the jobs in the labor market survey were

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actually open and potentially available to Claimant during a reasonable time period

when Claimant had an opportunity to apply for any of them.

In addition, Claimant asserts there is no record showing Vocational

Expert served his earning power assessment and labor market survey on Claimant

or counsel, simultaneously or otherwise, as required by 34 Pa. Code §123.204(c).

In response, Employer contends Claimant waived these issues by

failing to raise them in her appeal to the Board from the WCJ’s decision and order.

We agree.

In her appeal to the Board, Claimant raised the following issues:

[IME Physician] and [Employer’s Orthopedist’s] testimony were inconsistent both internally and with each other, resulting in legally equivocal opinions. Further, Employer is estopped from denying relatedness of cervical injury via its course of conduct, paying all bills and pre-approving cervical surgery, which surgeons and hospitals detrimentally relied upon, and has saddled innocent Claimant with over $100,000 in medical bill collections. Further, the adjuster instructed [Vocational Expert] to not contact Employer to see if there were jobs available, in violation of §306(b)(2), a pre-condition to a [labor market survey]. The [labor market survey] was thus unreasonably contested. The WCJ, respectfully, did not offer a reasoned decision on this issue. [Vocational Expert’s] testimony also was so inherently flawed as to not meet Employer’s legal threshold of unequivocal testimony, and the above-described conduct was bad faith per se.

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Further, Claimant’s objections to [IME Physician’s] testimony is [sic] preserved herein, as well as miscellaneous evidentiary rulings. [IME Physician] shredded records, some of which he relied upon and were never otherwise turned over in discovery.

Certified Record, Appeal from Judge’s Findings of Fact and Conclusions of Law,

1/5/12, at 3; Resp’t’s Reproduced Record (R.R.) at 2a.

Nowhere in her appeal to the Board did Claimant raise the issue of

whether Employer failed to establish that the positions Vocational Expert

identified in the labor market survey were open and available at the time the survey

was performed. Therefore, Claimant waived this issue. See McGaffin v. Workers'

Comp. Appeal Bd. (Manatron, Inc.), 903 A.2d 94 (Pa. Cmwlth. 2006) (failure to

raise an issue with the requisite specificity in the appeal documents before the

Board constitutes a waiver of those issues under 34 Pa Code §111.11(a)(2)).

Likewise, Claimant failed to preserve the issue of whether Vocational

Expert failed to comply with the service requirements in 34 Pa. Code §123.204(c).

An employer need not show compliance with 34 Pa. Code §123.204(c) as a part of

its initial burden of proof in a modification petition. Kleinhagan v. Workers'

Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269 (Pa. Cmwlth. 2010).

Rather, a claimant bears the responsibility of raising the issue of a vocational

expert’s alleged failure to provide her with a copy of the earning power assessment

and labor market survey as a defense to the modification petition. Id. Similarly, a

claimant should raise as a defense any claim that these documents were not sent to

her simultaneously with their mailing to the employer or its insurer. The burden

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then shifts to the employer to prove these documents were timely supplied to the

claimant. Id.

Consequently, Claimant waived her challenge to Vocational Expert’s

alleged noncompliance with the service requirements in 34 Pa. Code §123.204(c)

by failing to raise it in the modification proceeding. Kleinhagan. Claimant also

waived this issue by failing to raise it in her appeal to the Board. McGaffin.

Moreover, regardless of waiver, Claimant’s reliance on Phoenixville

Hospital is misplaced for the reason that Claimant never applied for any of the

positions identified in the labor market survey or disputed whether they were

actually available for a reasonable time. In Phoenixville Hospital, the Supreme

Court, in reversing this Court, held in part that evidence showing a claimant

unsuccessfully applied for the positions listed in a labor market survey could be

used to rebut the employer’s argument that survey positions were actually

available. However, as the Supreme Court noted, “it would only be the motivated

claimant who would be able to offer admissible evidence regarding these matters.”

Phoenixville Hosp., 81 A.3d at 846 n.19. “Not all claimants would pursue

employment opportunities presented to them ….” Id.

Here, Claimant did not apply for any of the positions identified in the

labor market survey. As such, the Supreme Court’s decision in Phoenixville

Hospital is inapplicable here.

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2. In-House Positions

Nonetheless, Claimant further contends Vocational Expert violated

Section 306(b)(2) of the Act and 34 Pa. Code §123.301(a), by seeking a

modification based upon a labor market survey without showing a lack of in-house

positions during the relevant time frame. Claimant asserts that where there is a

possibility of an available job with the employer, the employer must show the

absence of any available positions before it can rely upon an earning power

assessment. See Rosenberg v. Workers’ Comp. Appeal Bd. (Pike Cnty.), 942 A.2d

245 (Pa. Cmwlth. 2008) (en banc) (Section 306(b)(2) requires an employer seeking

a modification based on a labor market survey to show a lack of available in-house

positions where claimant presented evidence of a suitable available position, i.e.,

her former position, with employer).

In particular, Claimant asserts Vocational Expert admitted he did not

attempt to contact Employer about available jobs because Insurer’s claims adjuster,

Deb Razzizi (Claims Adjuster), instructed him not to contact Employer. See Dep.

of Phillip K. Hess (Hess Dep.), 5/16/11, at 33-34.

Further, on cross-examination, Vocational Expert acknowledged

Claimant informed him during the interview that she applied for nine positions

with Employer, but was not hired. See Hess Dep. at 33. Vocational Expert further

testified he did not contact Employer for any information about these nine

positions. Id. at 39-40.

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In addition, Claimant argues Vocational Expert’s testimony that

Employer did not offer Claimant certain open positions because of her educational

level is incompetent and based on hearsay. Claimant maintains that such a finding

disregards a myriad of other reasons why Employer did not offer her a position.

Summarizing, Claimant argues Employer has many jobs and cannot

seek modification of Claimant’s benefits based on a labor marker survey without

finding an in-house position for her. Thus, Claimant urges, the WCJ erred in

granting Employer’s modification petition based on the labor market survey.

We disagree. “Under Section 306(b)(2) of the Act, an employer may

seek modification of a claimant’s benefits by either offering the claimant a specific

job that it has available that she is capable of performing or establishing her

earning power through expert opinion evidence.” Kleinhagan, 993 A.2d at 1275.

(citation omitted). “In interpreting Section 306(b)(2) of the Act, we previously

found that while Section 306(b)(2) provides that the employer shall offer the

claimant a specific job if it has one available, it does not require proof of the

absence of specific jobs with the employer as a prerequisite to pursuing

modification.” Id. (emphasis added). “Rather, we stated that the claimant may

present proof of the existence of such a position as a defense to modification.” Id.

(citing Rosenberg). See also Reichert v. Workers' Comp. Appeal Bd. (Dollar Tree

Stores/Dollar Tree Express and Specialty Risk Servs., Inc.), 80 A.3d 824 (Pa.

Cmwlth. 2013) (a vocational expert is not required to contact the claimant’s

employer about open and available positions prior to conducting a labor market

survey).

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Here, the WCJ found that in 2007 Claimant applied for about five jobs

with Employer. F.F. No. 14(d). Claimant testified these jobs were basically

“receptionist, clinical, administrative assistant work, all those types of positions.”

N.T., 6/14/11, at 11. Claimant further testified she applied for an administrative

assistant position with Employer in 2009. F.F. No. 14(d); N.T., 6/14/11, at 21.

In addition, in her brief to this Court, Claimant asserts she made an

effort on her own to apply for nine jobs with Employer, but was unsuccessful. See

Pet’r’s Br. at 24; Hess Dep. at 34. However, Claimant failed to specify what the

jobs were or whether they fell within her qualifications and medical restrictions.

In Rosenberg, we reasoned that where a claimant can prove she could

perform an available job with the employer, which was open during the period

between her receipt of the notice of ability to return to work and the filing of the

modification petition (under 34 Pa. Code §123.301, the period during which an

employer has an obligation to offer an available position within a claimant’s

abilities), the burden shifts to the employer to rebut the claimant’s evidence.

Here, as the WCJ noted during the hearing, Claimant’s five or six job

applications in 2007 and 2009 substantially predated the period between

Employer’s issuance of a notice of ability to return to work in April 2010 and

Employer’s February 2011 modification petition seeking to reduce or suspend

Claimant’s benefits. See N.T., 6/14/11, at 11. As such, Claimant’s 2007 and 2009

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job applications are irrelevant to the merits of Employer’s February 2011

modification petition.4 Rosenberg.

Further, with respect to the nine positions Claimant refers to in her

brief, Claimant offered no evidence of the identity of the positions, their specific

requirements, or when they were available. Given these circumstances, Claimant

did not present sufficient evidence to shift the burden of proof to Employer to

prove it had no available positions that Claimant could perform. Reichert;

Kleinhagan.

Moreover, Vocational Expert testified that following his May 2010

vocational interview with Claimant, and his analysis of her skills, he inquired if

there were any available jobs with Employer. See Hess Dep. at 15. However,

Employer had no available work for Claimant. Id. Vocational Expert then

proceeded with a labor market survey and found several positions Claimant could

perform. Id.

As noted above, the WCJ found Vocational Expert’s testimony

credible and persuasive, and she accepted it as fact. F.F. No. 18. Vocational

Expert testified Employer had no work within Claimant’s vocational qualifications

4 Claimant argues that Finding of Fact No. 18, that Employer did not hire Claimant,

because of her educational level, for any of the five positions she applied for in 2007 and 2009,

which included receptionist and administrative work, is not supported by competent evidence.

However, Claimant’s 2007 and 2009 job applications predated the relevant time period for

Employer’s modification petition (late 2010 to early 2011). Because Claimant’s 2007 and 2009

job applications are irrelevant to Employer’s 2011 modification petition, we need not address

Claimant’s evidentiary challenge.

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and medical restrictions. F.F. No. 11(i). Nevertheless, Vocational Expert

continued to monitor Employer’s website for available positions. Id.

Here, Vocational Expert’s testimony supports the WCJ findings that

Employer had no positions available within Claimant’s qualifications and

restrictions at the time he performed the labor market survey.5 Consequently,

Claimant’s reliance on Rosenberg for the proposition that Employer must offer

Claimant an in-house position is misplaced. Reichert; Kleinhagan.

B. Cervical Injury – Review Petition

Claimant next contends the WCJ erred in denying Claimant’s review

petition seeking recognition of a cervical injury based on Employer’s Orthopedist’s

opinions concerning Claimant’s cervical spine where Employer retained the doctor

solely to examine Claimant’s right shoulder injury. Similarly, Claimant argues the

WCJ capriciously disregarded the opinions of IME Physician and Claimant’s

Orthopedist, who both agreed that Claimant’s work injury included a cervical

injury.

Claimant asserts this Court should find Employer’s Orthopedist’s

testimony incompetent for several reasons. In Finding of Fact No. 16(c), the WCJ

stated (with emphasis added):

5 If the record contains substantial evidence supporting the WCJ’s findings, they must be

upheld. Minicozzi v. Workers' Comp. Appeal Bd. (Indus. Metal Plating Inc.), 873 A.2d 25 (Pa.

Cmwlth. 2005). It is irrelevant whether the record contains evidence that would support findings

other than those made by the WCJ. Id.

22

Employer’s Orthopedist examined Claimant on three occasions and on all three occasions the cervical spine exam was normal. To the extent that the testimony of [IME Physician] and [Employer’s Orthopedist] are inconsistent as to whether Claimant sustained any neck injury, the Judge accepts the testimony of [Employer’s Orthopedist] that Claimant did not sustain any neck injury as more credible and persuasive than any contrary testimony of [IME Physician]. [Employer’s Orthopedist] examined Claimant three times and all three of his examinations took place before the examination of [IME Physician] and took place closer in time to the work injury.

F.F. No. 16(c).

First, Employer’s Orthopedist examined Claimant three times and on

all three occasions, her cervical exams were normal. Claimant argues this finding

is inconsistent with the weight of objective evidence, including the MRIs, as well

as the exam results of IME Physician and Claimant’s Orthopedist.

Second, Claimant asserts, Employer’s Orthopedist’s reports do not

include any cervical opinions. Rather, Employer’s Orthopedist’s reports were

strictly limited to her right shoulder. See F.F. No. 10(n) (Employer’s Orthopedist

agreed that he did not offer any opinions regarding Claimant’s cervical spine in

any of his reports). As a result, Employer’s Orthopedist first reported his cervical

findings in his testimony, which prejudiced Claimant and her counsel.

Third, Claimant argues, the WCJ found the testimony and medical

analysis of both Employer’s Orthopedist and IME Physician “clear, logical and

well supported.” See F.F. Nos. 16(d), (e). Ultimately, however, the WCJ found

23

the opinions of Employer’s Orthopedist, who did not file a report concerning the

cervical injury, more credible than IME Physician, the expert retained specifically

to examine Claimant’s cervical spine. F.F. No. 16(c).

In addition, Claimant asserts, Claimant underwent surgery

approximately four months after Employer’s Orthopedist’s third and final

examination. Claimant had a C3-4 and C4-5 anterior cervical discectomy and

fusion. Claimant contends this demonstrates that Employer’s Orthopedist’s

opinions regarding Claimant’s cervical spine were simply untruthful.

For the above reasons, Claimant argues that Finding of Fact No. 16(c)

is not supported by competent evidence. Therefore, Claimant asserts, the WCJ’s

conclusion that she did not meet her burden in her review petition to add a cervical

injury, constitutes reversible error.

We disagree. First and foremost, a claimant seeking to expand the

description of injury in an NCP bears the burden of proof. Commercial Credit

Claims v. Workmen’s Comp. Appeal Bd. (Lancaster), 728 A.2d 902 (Pa. 1999). In

cases involving a new and distinct physical condition, where no reasonable nexus

or obvious relationship exists between the injury described in the NCP and a later

claimed physical condition, the claimant has the initial burden of showing a causal

relationship between the work injury and the claimed condition. City of Phila. v.

Workers' Comp. Appeal Bd. (Fluek), 898 A.2d 15 (Pa. Cmwlth. 2006). To hold

otherwise, would subject employers to liability for any physical injury that

24

develops after an acknowledged work injury, regardless of a lack of an obvious

connection. Id.

As noted above, Claimant’s Orthopedist opined that, in addition to her

shoulder injuries, Claimant sustained herniated cervical discs at C3-4-5, multilevel

cervical radiculopathy C3 through C5, on the left and C3 through C7 on the right,

right brachial plexopathy, neurapraxia or stretch injury, a dorsal scapular nerve

injury and suprascapular never injury, all causally related to her June 2006 work

injury. See F.F. No. 8(k).

However, in Finding of Fact No. 16, the WCJ accepted the testimony

of Employer’s Orthopedist and IME Physician as more credible and persuasive

than that of Claimant’s Orthopedist. Further, the WCJ accepted the testimony of

Employer Orthopedist, that Claimant did not sustain any work-related neck injury,

as more credible and persuasive than any contrary testimony from IME Physician.

Id.

Therefore, the WCJ determined (with emphasis added):

Claimant did not sustain herniated cervical discs at C3-4-5, multilevel cervical radiculopathy C3 through C5, on the left and C3 through C7 on the right, right brachial plexopathy, neurapraxia or stretch injury, a dorsal scapular nerve injury and suprascapular nerve injury in the course of her employment with [Employer].

F.F. No. 20.

It is within the exclusive province of the WCJ, as fact-finder, to assess

credibility and resolve evidentiary conflicts. Waldameer Park, Inc. v. Workers'

25

Comp. Appeal Bd. (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003). As such, the

WCJ may reject the testimony of any witness, including an expert medical witness,

in whole or in part. Id.

Clearly, the WCJ rejected as unpersuasive Claimant’s medical

evidence of a causal relationship between Claimant’s cervical condition and her

June 2006 work injury. Thus, Claimant failed to meet her burden of establishing a

work related cervical injury. Fluek.

Moreover, we reject Claimant’s contention that Employer’s

Orthopedist’s cervical opinion was equivocal. Whether expert testimony is

equivocal is a question of law fully reviewable on appeal. Inservco Ins. Servs. v.

Workers' Comp. Appeal Bd. (Purefoey), 902 A.2d 574 (Pa. Cmwlth. 2006). In

making that determination, we examine the testimony of a witness as a whole and

do not take words or phrases out of context. Id. “A medical expert’s testimony is

unequivocal if, after providing a foundation, he testifies that he believes or thinks

the facts exist.” Id. at 579.

Employer’s Orthopedist examined Claimant on three occasions. F.F.

No. 10(b); Dep. of Richard L. Trabulsi, M.D. (Trabulsi Dep.), 2/2/11 at 9.

Employer’s Orthopedist took Claimant’s history and reviewed her medical records,

including a December 2006 cervical MRI. F.F. Nos. 10(b)-10(e); Trabulsi Dep. at

7-15. Employer’s Orthopedist unequivocally opined that upon each physical

examination, Claimant’s cervical spine was normal. F.F. No. 16(c); Trabulsi Dep.

at 17-20, 23, 29. In April 2010, based on Employer’s Orthopedist’s opinions,

26

Employer issued Claimant a notice of ability to return to work. F.F. No. 11;

Trabulsi Dep. at Ex. D-5. In February 2011, Employer’s Orthopedist cleared

Claimant for the positions Vocational Expert identified as available in the labor

market survey. F.F. No. 10(o); Trabulsi Dep. at 30-32.

Further, assuming Employer hired Employer’s Orthopedist primarily

to provide an opinion on Claimant’s right shoulder injuries, this would not render

his testimony regarding Claimant’s cervical condition incompetent.6 An objection

based on this fact would go to weight of the evidence, not its competency. See,

e.g., Kocher v. Workmen’s Comp. Appeal Bd. (B.G. Coon Constr. Co.), 415 A.2d

162 (Pa. Cmwlth. 1980) (objections to orthopedist’s testimony regarding the

claimant’s liver problems went to the weight of the evidence, not its competency).

We also reject Claimant’s contention that the WCJ capriciously

disregarded IME Physician’s testimony that Claimant sustained a work-related

6 In addition, we reject Claimant’s contention that Employer’s Orthopedist’s cervical

opinions unfairly prejudiced Claimant because Employer’s Orthopedist did not offer an opinion

concerning Claimant’s cervical spine in his expert reports. In workers’ compensation

proceedings, a WCJ is not bound by the technical rules of evidence applicable in an action

brought in the courts. Rather, workers’ compensation proceedings are governed by the Special

Rules of Administrative Practice and Procedure Before Workers' Compensation Judges (Special

Rules). See Stech v. Workmen’s Comp. Appeal Bd. (MJS Equip. Co.), 678 A.2d 1243 (Pa.

Cmwlth. 1996). In Stech, we held that the employer’s medical expert could testify during his

deposition as to issues of causation regardless of the fact that his report was limited to the

claimant’s employability. See also Besozzi v. Workers' Comp. Appeal Bd. (Consol Pa. Coal

Co.), (Pa. Cmwlth., 610 C.D. 2013, filed August 20, 2013), 2013 WL 4477396 (unreported)

(there is no requirement in the Special Rules that a medical expert in a workers’ compensation

case must confine himself exactly to the contents of his expert report). Consequently, the WCJ

could make findings based upon Employer’s Orthopedist’s opinion that Claimant did not sustain

a work-related cervical injury.

27

cervical sprain (See F.F. No. 9(j)). The WCJ found Employer’s Orthopedist’s

testimony more credible and persuasive than any contrary testimony of IME

Physician. F.F. No. 16(c). Where there is conflicting medical testimony, the fact

that the WCJ found one doctor more credible than another does not constitute a

capricious disregard of the evidence. Kocher. Therefore, Employer’s

Orthopedist’s testimony provides competent medical evidence for the WCJ’s

determination that Claimant did not sustain any compensable cervical injuries

related to the June 2006 work incident that caused her accepted right shoulder

injury. Fluek.

Finally, the fact that Claimant had cervical surgery following

Employer’s Orthopedist’s three examinations does not render his testimony

equivocal or incompetent. Both Employer’s Orthopedist and IME Physician

observed that Claimant had some degenerative disease of the cervical spine

unrelated to her work injury. IME Physician, who examined Claimant after her

2010 surgery, did not relate the surgery to anything that happened during the June

2006 work incident. F.F. No. 9(i); Dep. of Stephen L. Fedder, M.D. (Fedder Dep.)

at 16.

In short, competent medical evidence supports the WCJ’s findings

that Claimant did not sustain a work-related cervical injury. Consequently, we

hold the WCJ did not err or abuse her discretion in denying Claimant’s review

petition seeking to expand the NCP to include cervical injuries.

28

C. Cervical Injury – Estoppel

Claimant also contends Employer is estopped from denying she

suffered a work-related neck injury for two reasons. First, Employer paid for

treatment of Claimant’s neck for a four-year period. Second, Claimant asserts,

Insurer pre-approved Claimant’s cervical surgery, which Claimant’s Surgeon

ultimately performed.

Claimant argues her medical providers clearly and justifiably relied, to

their economic detriment, upon Employer’s representations. Therefore, Claimant

asserts, as a result of Employer’s refusal to keep its promises, Claimant’s medical

providers continue to bill her directly for medical costs in excess of $100,000.

Claimant thus maintains Employer is estopped from denying liability for these

costs. See Westinghouse Elec. Corp./CBS v. Workers' Comp. Appeal Bd.

(Korach), 883 A.2d 579, 586 (Pa. 2005) (citation omitted) (equitable estoppel in

workers’ compensation cases arises “when an employer ‘by its acts,

representations, admissions, or by [its] silence when [it] ought to speak out,

intentionally, or through culpable negligence, induces another to believe certain

facts to exist and such other rightfully relies on such belief, so that he will be

prejudiced if the former is permitted to deny the existence of such facts’”).

Here, Claimant contends Employer admitted the work-relatedness of

the cervical injury by paying for it. Claimant also assigns Insurer’s pre-approval of

the cervical surgery as an admission of liability. Thus, Claimant argues, Employer

cannot litigate facts it already admitted. See Beissel v. Workmen's Comp. Appeal

Bd. (John Wanamaker, Inc.), 465 A.2d 969 (Pa. 1983) (an employer cannot litigate

29

the causal relationship of a back injury after it admitted liability for that injury in

an NCP).

In support of her position, Claimant also relies on Schreffler v.

Workers’ Compensation Appeal Board (Kocher Coal Co.), 788 A.2d 963 (Pa.

2002), where the Supreme Court held that an employer’s voluntary payment of

medical expenses may constitute payment of compensation for purposes of tolling

the three-year limitation period for filing claim petitions in Section 315 of the Act,

77 P.S. §602. In order to toll the limitation period in Section 315, the claimant

must establish a work-related injury occurred and that the employer intended the

payments to be compensation for the injury. Here, Claimant maintains she met

that burden because Employer paid “through its workers’ compensation policy and

not under Penn’s private health insurance.” Br. for Pet’r at 34. Thus, Employer

cannot rebut these facts by attempting to show it made these payments for other

reasons.

In addition, Claimant cites Gumro v. Workmen’s Compensation

Appeal Board (Emerald Mines Corp.), 626 A.2d 94 (Pa. 1993), for the proposition

that Employer’s Orthopedist’s testimony, that Claimant did not sustain a work-

related cervical injury, does not undermine Employer’s acceptance of the cervical

injury. In Gumro, the claimant sustained a left knee injury when he stepped in a

hole and twisted his knee. The employer issued an NCP accepting the left knee

injury as compensable. Following arthroscopic surgery, the claimant developed

pain in his left leg, which his physician attributed to a deep venous insufficiency.

Ultimately, the Supreme Court reasoned that an employer asserting an independent

30

cause for a previously admitted disability must establish the independent cause of

the continuing disability arose after the filing of the NCP accepting the work

injury.

Summarizing, Claimant asserts Employer acknowledged the work-

related nature of Claimant’s neck injury by consistently paying for treatment and

by pre-approving Claimant’s cervical surgery. Claimant maintains Employer had

ample time to investigate causation prior to approving Claimant’s surgery. As

such, Claimant argues Employer is estopped from denying Claimant sustained a

work-related cervical injury.

Initially, we note, a claimant bears the burden of proving estoppel.

Westinghouse. The essential elements of estoppel are inducement to believe

certain facts exist by the party sought to be estopped and detrimental reliance on

those purported facts by the party asserting estoppel. Id. In short, a necessary

element of an estoppel claim is that the party sought to be estopped engaged in

some form of misrepresentation, concealment or other inequitable conduct, in an

effort to mislead the other party. Id.

1. Voluntary Payment of Claimant’s Medical Bills

First, an employer’s voluntary payment of a claimant’s medical bills

beyond those required by the Act is not considered an admission of liability.

Bailey v. Workers’ Comp. Appeal Bd. (ABEX Corp.), 717 A.2d 17 (Pa. Cmwlth.

1998); Bellefonte Area Sch. Dist. v. Workmen's Comp. Appeal Bd. (Morgan), 627

A.2d 250 (Pa. Cmwlth. 1993). An employer’s payment of their injured employees’

31

medical bills benefits both the employer and its employees. The employees regain

their health, which reduces the employer’s liability for future compensation.

Regardless of the employer’s reasons for payment, the injured employees are the

chief beneficiaries of this practice. Therefore, an employer’s voluntary payment of

a claimant’s medical bills “should not be considered an ‘admission’ of liability on

behalf of the employer.” Bailey, 717 A.2d at 19.

Here, the WCJ further found Claimant first received treatment for her

neck in 2006. F.F. No. 14(e). Claimant treated with Chiropractor and then

Claimant’s Orthopedist. Id. Based on Claimant’s testimony, the WCJ found

Insurer paid for Claimant’s medical treatment before the surgery. F.F. No. 14(f);

N.T., 6/14/11, at 14-15.

In accord with Bailey and Bellefonte, Employer’s payment for

Claimant’s neck treatment prior to surgery does not constitute an admission by

Employer that Claimant sustained a work-related cervical injury. To that end,

Employer’s NCP described Claimant’s June 2006 work injury as “partial tears of

the right shoulder.” F.F. No. 1. In August 2010, Claimant filed a review petition

seeking to amend the NCP to include a cervical injury. F.F. No. 4. Unlike the

situation in either Gumro or Beissel, where the NCP established the work injury,

Claimant’s review petition sought to add a new injury not accepted in the NCP.

Moreover, the WCJ found Employer’s Orthopedist’s opinion, that

Claimant did not sustain a work-related cervical injury, more credible and

persuasive than any other medical evidence submitted in this case. F.F. No.16;

32

16(c). As noted above, Employer’s payment of Claimant’s medical expenses does

not constitute an admission of liability for an unaccepted injury.7 Bailey;

Bellefonte. Therefore, Employer’s payment of medical expenses did not preclude

it from denying Claimant’s cervical injury claims. As a result, Claimant’s estoppel

claim for a work-related cervical injury fails.

2. Medical Expenses Related to Cervical Surgery; Estoppel

However, in addition to paying her medical bills prior to surgery,

Claimant asserts Insurer pre-approved her cervical surgery. As discussed above,

Insurer’s pre-approval of Claimant’s cervical surgery cannot be construed as an

admission of liability for a work-related cervical injury. Bailey; Bellefonte.

Nevertheless, Claimant may have preserved an estoppel claim for

payment of her medical expenses related to her cervical surgery, including perhaps

treatment for damage to her vocal cords resulting from the surgery. A necessary

element of an estoppel claim is that the party sought to be estopped engaged in

some form of misrepresentation, concealment or other inequitable conduct in an

effort to mislead the other party. Westinghouse. Here, the WCJ found Claimant’s

7 Also, in light of Bailey v. Workers’ Compensation Appeal Board (ABEX Corp.), 717

A.2d 17 (Pa. Cmwlth. 1998) and Bellefonte Area School District v. Workmen's Compensation

Appeal Board (Morgan), 627 A.2d 250 (Pa. Cmwlth. 1993), which hold that payment of medical

expenses is not an admission of liability for a work-related injury, we believe Claimant’s reliance

on Schreffler is misplaced. Schreffler held that an employer’s payment of medical expenses can

constitute payment of compensation for tolling the three-year limitations period in Section 315 of

the Act for filing claims. Interestingly, however, the Schreffler Court recognized that an

employer may rebut the presumption that payments made were in lieu of workers’ compensation

by demonstrating that the claimed injury was not work-related.

33

Surgeon told Claimant that he received pre-approval from Insurer for the neck

surgery. F.F. No. 14(f). Claimant testified on direct as follows:

Q. Did you get any guarantees or pre-approval from [Insurer] when you were going in for the neck surgery? A. Yes. Q. What was that guarantee for pre-approval? A. [Claimant’s Surgeon’s] office called me and told me it was pre-approved, that I could come and have the surgery done and I had it done.

N.T., 6/14/11, at 15.

Also, in discussing whether Insurer pre-approved Claimant’s surgery,

counsel engaged in the following discussion with the WCJ (with emphasis added):

[Claimant’s Counsel]: The issue here, Your Honor, the main reason we filed a petition is, she was approved for this surgery. She got the surgery and then the bill was denied. Now, she’s got a huge bill and that’s part of the reason we filed a review petition. [WCJ]: The surgery was denied by whom? [Claimant’s Counsel]: [Insurer] had denied the payment for the bill after she had gone through the process and had it pre-approved, essentially. [WCJ]: Do you agree with that, Mr. Magaldi? [Employer’s Counsel]: I agree with counsel’s representation. I have no reason to disagree with him, Judge. I don’t know that for a fact. I take him at his word. However, that’s why we’re here, Judge. Whether they paid the bill or not really isn’t relevant at this point. [WCJ]: I think what Mr. Kapner is trying to establish is that it was pre-approved and then the bill was rejected after [Claimant] went to surgery; is that correct, Mr. Kapner? [Claimant’s Counsel]: That’s correct, and I know I can do it the long way and try to take all the different vendors depositions to establish that.

34

[WCJ]: I’m not asking what you could do. Let’s move this along.

N.T., 6/14/11, at 13-14.

Regardless of the lack of documentary evidence supporting

Claimant’s assertion of Insurer’s pre-approval,8 the above discussion reflects that

Employer’s Counsel did not dispute Claimant’s Counsel’s representation that

Insurer pre-approved Claimant’s cervical surgery then denied payment after

Claimant had the surgery.

Further, Claimant testified she underwent surgery after being told that

Insurer pre-approved it. N.T., 6/14/11, at 15. As a result of Insurer’s denial of

payment for the surgery, Claimant received bills and dunning notices from her

medical providers. Id. Claimant’s Counsel introduced Claimant’s unpaid medical

bills and late notices into the record as Claimant’s Exhibit No. C-2. N.T., 6/14/11,

at 16-17.

In Westinghouse, our Supreme Court recognized that where the

claimant raised the issue of whether his employer lulled him into a false sense of

security, the employer was put on notice of an equitable estoppel claim. Therefore,

the claimant did not waive his equitable estoppel claim despite failing to raise it in

his claim petition. See Westinghouse, 883 A.2d at 586.

8 The Board found Claimant submitted no documentary evidence supporting her

allegation that Employer pre-approved her cervical surgery. See Bd. Op., 9/16/03, at 13-14. The

Board thus reasoned the WCJ properly determined Employer was not liable for payment of

Claimant’s cervical surgery. Id.

35

Here, Claimant’s Counsel indicated the main reason Claimant filed

her review petition was Insurer’s pre-approval of her surgery and subsequent

refusal to pay for it. N.T., 6/14/11, at 13. According to Claimant’s Counsel,

Claimant’s reliance on her belief that Insurer pre-approved her surgery left her

with huge medical bills. Id. In accord with Westinghouse, Claimant may be

entitled to a determination of her equitable estoppel claim for payment of more

than $100,000 in medical expenses related to her cervical surgery.

However, the respected WCJ did not address any estoppel claim in

either her findings or legal conclusions. Moreover, when the exhibits were offered,

the WCJ did not understand that Claimant’s cervical surgery bills were to be

considered as part of an estoppel claim, independent of a determination that a

cervical injury was causally related to the work incident. N.T., 6/14/11, at 16. In

addition, Claimant’s Counsel’s statements at the time of submission of the surgical

bills seem inconsistent with consideration of the bills as part of an estoppel claim.

Id. At the end of the hearing, the WCJ encouraged Claimant’s Counsel to “update

your litigation costs with your findings,” N.T., 6/14/11, at 26, but no such update

and findings is part of the certified record. In short, it is unclear whether

Claimant’s Counsel fairly put the WCJ on notice of an estoppel claim before she

issued her decision.

“It is generally well settled that an appellate court ‘should not infer

from the absence of a finding on a given point that the question was resolved in

favor of the party who prevailed below, for the point may have been overlooked or

the law misunderstood at the trial or hearing level.’” ARMCO, Inc. v. Workmen's

36

Comp. Appeal Bd. (Carrdous), 590 A.2d 827, 831 (Pa. Cmwlth. 1991) (quoting

Page’s Dep’t Store v. Velardi, 346 A.2d 556, 561 (Pa. 1975)). “Where such

findings were not made, the case must be remanded so that findings may be

supplied.” Id.

Therefore, in the interests of justice, we hold a remand is necessary

for further determinations on the following estoppel issues: (1) whether Claimant

preserved an estoppel claim by fairly bringing it to the WCJ’s attention; (2) if so,

whether Insurer represented to Claimant that it pre-approved her cervical surgery;

(3) if the issue is preserved, what medical bills are causally related to Insurer’s pre-

approval; and, (4) if the issue is preserved, whether Claimant established she relied

on Insurer’s representation to her financial detriment, where Employer allegedly

provided private health insurance coverage9 that may or may not cover the costs for

Claimant’s non-work related cervical surgery.

D. Spoliation of Evidence

In her final argument, Claimant contends the WCJ erred in not

sustaining Claimant’s objections to the introduction of IME Physician’s deposition

because IME Physician destroyed the records he reviewed and notes that he made

contemporaneously with his examination. Claimant asserts Employer should have

been sanctioned under the spoliation doctrine because IME Physician destroyed

significant evidence, which made it impossible to fully cross-examine him.

9 Claimant notes in her brief that Employer paid her pre-surgery medical costs for her

neck treatment through its workers’ compensation policy, not through its private health

insurance. See Br. for Pet’r at 34.

37

In determining the proper penalty for altering or destroying evidence,

relevant factors include: “(1) the degree of fault of the party who altered or

destroyed the evidence; (2) the degree of prejudice suffered by the opposing party,

and (3) the availability of a lesser sanction that will protect the opposing party’s

rights and deter future similar conduct.” Schroeder v. Dep’t of Transp., 710 A.2d

23, 27 (Pa. 1998). Here, Claimant argues, because she could not fully cross-

examine IME Physician as a result of his shredding of records he reviewed in

reaching his expert opinion, IME Physician’s testimony should be either excluded

or rejected as not credible.

Employer responds that the Board properly determined Claimant

waived any objection to IME Physician’s shredding of records by not raising this

objection during the deposition. Section 131.66(b) of the Special Rules (relating to

admissibility of oral depositions) relevantly provides;

(b) Objections shall be made and the basis for the objections stated at the time of the taking of the depositions. Only objections which are identified in a separate writing, introduced prior to the close of the evidentiary record … and stating the specific nature of the objections and the pages where they appear in the deposition or the exhibits to which they refer will be preserved for ruling. Objections not so preserved are waived.

34 Pa. Code §131.66(b).

In addition, Claimant’s counsel and Employer’s counsel agreed at

IME Physician’s deposition that “any objection not raised here this morning be

deemed to have been permanently waived.” Fedder Dep. at 5.

38

However, Claimant did not object to IME Physician’s shredding of

records until Employer submitted it into evidence at the WCJ’s final hearing in

June 2011. See N.T., 6/14/11 at 23-24. Because Claimant failed to object during

the deposition, Claimant waived her spoliation challenge. 34 Pa. Code §131.66(b);

Pioneer Mach. & Tool Co. v. Workmen's Comp. Appeal Bd. (Willis), 602 A.2d

442 (Pa. Cmwlth. 1992).

Further, IME Physician testified he only shredded copies of medical

records from other physicians that he was asked to review. See Fedder Dep. at 19.

Because the original records remain, we discern no error or abuse of discretion on

the part of the WCJ in overruling Claimant’s spoliation objection. Absent any

prejudice resulting from IME Physician’s shredding of records he received from

other doctors, sanctions were unwarranted. Schroeder.

IV. Conclusion

For the above reasons, we vacate the Board’s order to the extent it

determined Employer not liable for the payment of bills for Claimant’s cervical

surgery. See Bd. Op., 9/16/13, at 13-14. Insofar as Claimant’s equitable estoppel

claim seeks payment for medical expenses related to her cervical surgery, we

remand for proceedings consistent with this opinion.10 We leave to the thoughtful

discretion of the assigned WCJ whether to reopen the record.

10

Should the assigned WCJ grant payment of medical bills related to cervical surgery, he

or she should also consider the extent to which Claimant’s litigation costs should be recovered.

39

In all other respects, we affirm the order of the Board.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sonya Privette-James, : Petitioner : : v. : No. 1906 C.D. 2013 : Workers' Compensation Appeal : Board (University of Pennsylvania), : Respondent :

O R D E R AND NOW, this 5

th day of June, 2014, for the reasons stated in the

foregoing opinion, we VACATE the order of the Workers' Compensation Appeal

Board to the extent it holds the Workers' Compensation Judge did not err in finding

Employer liable for the payment of Claimant’s cervical surgery. Further, we

REMAND for determinations related to Claimant’s estoppel claim. In all other

respects, the order of the Board is AFFIRMED.

Jurisdiction is relinquished.

ROBERT SIMPSON, Judge