        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sonya Privette-James,                    :
                         Petitioner      :
                                         :
            v.                           :   No. 933 C.D. 2016
                                         :   Submitted: October 21, 2016
Workers' Compensation Appeal             :
Board (University of Pennsylvania),      :
                        Respondent       :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: March 22, 2017

            In this returning workers’ compensation litigation, all that remains is a
request that an insurer pay for (substantial) surgery bills even though they were
incurred for a condition found to be non-work related.


            The current appeal has its origin in our unreported decision in
Privette-James v. Workers' Compensation Appeal Board (University of
Pennsylvania) (Pa. Cmwlth., No. 1906 C.D. 2013, filed June 5, 2014), appeal
denied, 106 A.3d 727 (Pa. 2015) (Privette-James I), which vacated in part an order
of the Workers' Compensation Appeal Board (Board) and remanded with
instructions to Workers' Compensation Judge Susan Kelly (WCJ) to consider
whether the University of Pennsylvania (Employer) should be held liable, under a
theory of equitable estoppel, for payment of Sonya Privette-James’ (Claimant)
medical bills for cervical surgery. On remand, the WCJ determined Claimant did
not preserve an estoppel claim by failing to raise it before the WCJ. On appeal, the
Board affirmed. Here, Claimant contends the WCJ erred in determining Claimant
did not preserve an estoppel claim. For the reasons that follow, we affirm.


                                   I. Background
             The factual and procedural background to this case is set forth in
Privette-James I. Claimant worked for Employer as a sterilization attendant. Her
duties included sterilizing dental instruments for the clinics at Employer’s Dental
School. In 2006, Claimant sustained a work injury to her shoulder area while
loading a 50-pound basket of dental instruments into a sterilizing machine.
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.


             In May 2010, an 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. IRE Physician determined



                                           2
Claimant had an upper extremity impairment of seven percent and a whole body
impairment of four percent. However, the doctor remarked that he performed the
IRE for the right shoulder injury only. Nonetheless, 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.


                                   A. 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.


            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. In light of Claimant’s average weekly wage of
$514.10, Employer asserted Claimant’s benefits should be suspended or, at a
minimum, reduced.


                               B. WCJ’s Decision
                      1. Review Petition – Cervical Injury
            In her decision, the WCJ accepted the testimony of Employer’s
Orthopedist and Independent Medical Evaluation (IME) Physician, and IRE



                                        3
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:

            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



                                        4
discs or cervical radiculopathy, or any cervical injuries in the course of her
employment. 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. 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 Employer’s 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.


                               C. Board’s Decision
              In a comprehensive opinion, the Board affirmed. Claimant petitioned
for review.




                                         5
                     D. Issues Raised in Underlying Action
             Claimant presented several issues for review in Privette-James I
concerning the denial of her review petition and the grant of Employer’s
modification petition based on earning capacity. In the present appeal, however,
we need only address Claimant’s equitable estoppel claim. Claimant argued that
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’s
workers'   compensation     carrier,   PMA   Companies      (Insurer)   pre-approved
Claimant’s cervical surgery as work-related before rejecting the post-surgical bills,
which totaled more than $100,000.00.


                          E. Decision in Privette-James I
             In Privette-James I, we determined that competent medical evidence
supported the WCJ’s findings that Claimant did not sustain a work-related cervical
injury. Therefore, we held the WCJ did not err or abuse her discretion in denying
Claimant’s review petition seeking to expand the NCP to include cervical injuries.


             Nonetheless, we recognized that Claimant may have preserved an
estoppel claim for payment of her medical expenses related to her cervical surgery,
perhaps including treatment for damage to her vocal cords resulting from surgery.
In particular, the WCJ found that Claimant’s Surgeon informed Claimant that he
received a pre-approval from Insurer for the neck injury.




                                         6
            We also noted that the record reflected that Employer’s counsel did
not dispute Claimant’s counsel’s representation that Insurer pre-approved
Claimant’s surgery and then denied payment for it after Claimant had the surgery.
However, we also recognized the record lacked any documentary evidence
supporting Claimant’s assertion of Insurer’s pre-approval of the surgery. As a
result of Insurer’s denial of payment for the surgery, Claimant received bills from
her medical providers totaling more than $100,000. Regardless, we noted:

            the respected WCJ did not address any estoppel claim in
            either her facts or legal conclusions. Moreover, when the
            exhibits were offered, the WCJ did not understand that
            Claimant’s cervical surgery bills were to be considered
            part of an estoppel claim, independent of a determination
            that a cervical injury was causally related to the work
            incident. In addition, Claimant’s Counsel’s statements at
            the time of the submission of the surgical bills seem
            inconsistent with consideration of the bills as part of an
            estoppel claim. 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.

Privette-James I, Slip. Op. at 35 (citations omitted). As such, we concluded:

                   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


                                         7
             Employer allegedly provided private health insurance
             coverage that may or may not cover the costs for
             Claimant’s non-work related cervical surgery.

Id. at 36 (footnote omitted).


                          F. WCJ’s Decision on Remand
             On remand, the WCJ made the following findings (with emphasis
added):

             5. Claimant did not preserve an estoppel claim by fairly
             bringing it to the WCJ’s attention. The Judge finds that
             Claimant’s position during litigation was that because the
             surgery was pre[-]approved, the Review Petition to add a
             cervical injury must be granted. The argument that the
             bills related to the cervical surgery must be paid based on
             principles of equitable estoppel whether or not the
             cervical surgery was found to be work related was not
             presented. Significant in reaching these determinations
             are the following:

             (a) When Employer’s counsel objected to Claimant’s
             counsel’s question to Claimant regarding the insurance
             she believed she carried for the cervical surgery,
             Claimant’s counsel responded:

                    ‘The issue here, Your Honor, the main
                    reason why 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 the Review Petition.’ [N.T.,
                    6/14/11, at 13; R.R. at 14a].

             Claimant’s counsel did not argue that the bills should be
             paid based on equitable estoppel.           Additionally,
             Claimant’s counsel’s subsequent statements soon after as
             set forth in Finding of Fact No. 5(b) are consistent with



                                         8
non pursuit of a claim for payment based on equitable
principles.

(b) When Claimant’s counsel moved for the submission
of medical bills ([N.T., 6/14/11 at 16; R.R. at 17a]) and
the motion was objected to by Employer’s counsel, this
Judge stated:

      ‘I think [Claimant’s counsel] would like
      them to be paid should I find the neck to be
      work related; is that correct, Mr. Kapner?’

      [Claimant’s counsel]: Yes, Your Honor.

      WCJ: That’s        the       purpose   for   the
      submission?

      [Claimant’s counsel]: Exactly. It’s limited
      to that purpose. I’m not trying to establish
      any other facts.

[Claimant’s counsel’s] response is consistent with his
lack of pursuit of an equitable estoppel claim for
payment.

(c) While Employer’s counsel agreed with Claimant’s
counsel’s representation that [Insurer] denied payment of
the bill for cervical surgery after Claimant had gone
through the process and had it pre-approved, Employer’s
counsel also noted that he did not know that for a fact.
Significantly, it is clear from the notes of testimony that
Employer’s counsel framed the issue as presented as
whether the neck was part of the work injury. This is
established through his objection to the question of the
insurance Claimant believed she had for the surgery as
not relevant (Page 13[; R.R. at 14a]), his objection to the
submission of medical bills because a penalty petition
was not filed and the neck was not an accepted injury
(Page 16[; R.R. at 17a]) and his comment that whether
the bill was paid or not was not relevant (Page 14[; R.R.
at 15a]). Employer’s counsel’s lack of knowledge of an
equitable estoppel claim is consistent with the court not
being on notice of an equitable estoppel claim.

                               9
            (d) Reviewing the 6/14/11 [WCJ’s hearing, notes of
            testimony] record as a whole finds that Claimant did not
            preserve an estoppel claim by fairly bringing it to the
            WCJ’s attention.

            (e) Notably and in support of the finding that an equitable
            estoppel was not presented, Claimant’s counsel did not
            establish the requisite facts relative to an equitable
            estoppel claim. If such an argument was being advanced,
            it was incumbent upon counsel to present all evidence
            relevant to the issue during the pendency of the litigation.
            Claimant was provided with a full and fair opportunity to
            present all evidence. While Claimant testified that Dr.
            Siddiqi’s office called and told her the surgery was pre[-]
            approved, she did not present any non hearsay evidence
            in support of her testimony. She did not present any
            evidence establishing that the Insurer pre[-]approved the
            surgery and she did not present evidence establishing that
            she relied on the Insurer’s representation to her financial
            detriment although (allegedly) she had private health
            insurance.

            (f) Claimant’s counsel never cited case law addressing
            the issue of equitable estoppel during a hearing or in his
            9/30/11 letter brief in support of the Review Petition
            which is notable as seeking payment on equitable
            principles is not a typical argument.

            (g) In his letter brief, Claimant’s counsel ‘asks your
            Honor to grant [the Review Petition] so that Employer
            will be required to honor its word and pay the
            outstanding bills which would thus remove Claimant
            from collections activity[.]’ Again, there is no request
            that Employer pay the bills on an equitable estoppel
            theory if the cervical injury was not found to be work
            related. The request is to grant the Review Petition,
            finding the cervical injury work related, so the bills
            would be paid.

WCJ’s Remand Op., 8/21/15, Findings of Fact (F.F.) No. 5(a)-(g).




                                        10
              On appeal, the Board affirmed. Claimant petitions for review.1


                                          II. Issues
              Claimant contends the WCJ’s determination that she did not preserve
an estoppel claim by not fairly bringing it to the WCJ’s attention in the underlying
litigation, either on the record or in argument, is unsupported by substantial
evidence and contrary to law.


              Claimant also requests that this Court, en banc, revisit the issues
addressed and resolved in Privette-James I. See Pet’r’s Br. at 25, 44. However,
following our decision in Privette-James I, Claimant did not request
reconsideration or re-argument en banc. Rather, Claimant filed a petition for
allowance of appeal, which the Supreme Court denied. See Privette-James v.
Workers' Comp. Appeal Bd. (Univ. of Pa.), appeal denied, 106 A.3d 727 (Pa.
2015). Consequently, our decision in Privette-James I stands as the law of the
case. Commonwealth v. Tilghman, 673 A.2d 898 (Pa. 1996). “It is hornbook law
that issues decided by an appellate court on a prior appeal between the same parties
become the law of the case and will not be reconsidered on a second appeal.”
Commonwealth v. Tick, 246 A.2d 424, 427 (Pa. 1968).


              In addition, we note that a remand does not permit a litigant a
“proverbial second bite at the apple.” Emory Worldwide v. Unemployment Comp.

       1
          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).



                                              11
Bd. of Review, 540 A.2d 988, 990 (Pa. Cmwlth. 1988). Here, Claimant, upon
filing a petition for review and application to proceed in forma pauperis in the
present appeal, did not request an en banc assignment as to the non-remanded
issues. Further, Claimant did not object to the Court’s October 17, 2016 order
directing that the case be submitted on briefs to a three-judge panel without oral
argument. Regardless, because our decision in Privette-James I is the law of the
case as to the non-remanded issues, we decline Claimant’s offer to revisit them in
this appeal. Tilghman; Tick. Nevertheless, upon entry of a final order in the
present appeal, Claimant may file an application for re-argument en banc. See
Chapter 25 of the Pennsylvania Rules of Appellate Procedure (relating to Post
Submission Proceedings).


                                  III. Discussion
                                  A. Argument
            As noted, we will only address Claimant’s contention that the WCJ’s
determination (that she did not preserve an estoppel claim by not fairly bringing it
to the WCJ’s attention in the underlying litigation, either on the record or in
argument) is unsupported by substantial evidence and contrary to law.


            To the contrary, Claimant asserts she fairly raised the issue of
equitable estoppel on the record and in her argument before the WCJ. In support
of her position, Claimant cites Westinghouse Electric Corp./CBS v. Workers'
Compensation Appeal Board (Korach), 883 A.2d 579 (Pa. 2005).              Equitable
estoppel arises in workers’ compensation cases where the employer, by its acts,
representations, admissions, or by its silence when it should speak out,



                                        12
intentionally, or by culpable negligence, induces another to believe certain facts
exist, and that person rightfully relies or acts on that belief so as to be prejudiced if
the employer is permitted to deny the existence of such facts. Id.


             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.


             Here, Claimant acknowledges she never used the magic words
equitable estoppel. Nonetheless, Claimant argues, when an employer lures an
employee or claimant into a false sense of security by paying her medical bills, an
employer may be put on notice of the estoppel claim if the WCJ conducts matters
as if that was the case. Westinghouse.


             Here, Claimant asserts Insurer promised to pay for the cervical
surgery prior to surgery and that Claimant, the hospital, and Claimant’s Surgeon
relied upon that promise. However, upon being presented with the bill, Insurer
breached that promise by declining to pay for the surgery on the basis that it was
not work-related.


             Therefore, Claimant asserts, the only practical means she had of
addressing the estoppel issue required that she file a review petition to force



                                           13
Insurer to pay the surgical bills. In other words, Claimant premised her estoppel
argument on the fact that Insurer recognized the cervical injury by its conduct in
paying for Claimant’s cervical treatment for four years.


             In support of her argument, Claimant cites the following language
from the WCJ at the June 2011 hearing (with emphasis added):

             [WCJ]: I think what [Claimant’s counsel] is trying to
             establish is that it was pre-approved and then the bill was
             rejected after [Claimant] went to surgery; is that correct
             …?

             [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.

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

WCJ’s Hr’g, 6/14/11, N.T. at 14; R.R. at 15a.


             Therefore, Claimant maintains, the record shows Claimant and her
medical providers relied upon Insurer’s promise to pay for the cervical surgery to
her detriment. Further, Claimant asserts Employer did not, at any point, deny it
was on notice of an estoppel claim.


             In sum, Claimant argues the record clearly reflects Claimant
adequately raised the estoppel issue before the WCJ and that Employer had notice
of her estoppel claim. To that end, Claimant asserts Insurer’s pre-approval and
promises to pay for the cervical surgery lulled her into a false sense of security as
to the fact that Insurer would pay for her cervical surgery. Thus, the decisions of

                                         14
the WCJ and Board allowed Insurer to back out of its promises to pay and
burdened Claimant with the weight of Insurer’s misrepresentation. Consequently,
granting Claimant an equitable remedy for Insurer’s misrepresentations would
advance this Court’s directive that the Workers' Compensation Act2 be liberally
construed to effectuate its humanitarian purposes “with borderline interpretations
resolved in favor of the injured employee.” See Maple Creek Mining Co. v.
Workers' Comp. Appeal Bd. (Bakos), 833 A.2d 1198, 1200 (Pa. Cmwlth. 2003).
Therefore, Claimant requests that we reverse the WCJ’s determination that
Claimant did not preserve her estoppel claim and remand for a determination of the
remainder of the estoppel issues to be addressed on remand as stated in Privette-
James I.


                                          B. Analysis
               To begin our analysis, we recognize the WCJ determined on remand
that viewing the record as a whole, Claimant did not preserve an estoppel claim
because she failed to legitimately bring it to the WCJ’s attention. WCJ’s Remand
Op., 8/21/15, at F.F. Nos. 5, 5(d). The WCJ further found that although Claimant
alleged in her review petition that Employer or Insurer pre-approved her cervical
surgery, this fact does not support an argument that the bills related to the cervical
surgery must be paid under a theory of equitable estoppel regardless of whether the
cervical surgery is found to be work-related. F.F. No. 5.


               We agree.       As the WCJ explained in Finding of Fact No. 5(b),
Claimant’s counsel’s statements when he moved for admission of the medical bills

      2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.



                                               15
into evidence were inconsistent with pursuit of an equitable estoppel claim.
Remand Op., F.F. No 5(b). When asked by the WCJ if Claimant would like for the
bills to be paid if she found the neck condition to be work-related, Claimant’s
counsel replied “yes.” See N.T., 6/14/11, at 16; R.R. at 17a. When asked whether
that was the purpose of the submission, Claimant’s counsel replied (with emphasis
added): “Exactly. It’s limited for that purpose. I’m not trying to establish any
other facts.” Id.


             In addition, Employer’s counsel’s actions when Claimant’s counsel
submitted the medical bills were also inconsistent with an estoppel claim.
Employer’s counsel objected to the bills for the cervical surgery because they were
not for a work-related condition. F.F. No. 5(c); N.T., 6/14/11, at 16; R.R. at 17a.


             Most importantly, in finding that Claimant failed to present an
equitable estoppel claim, the WCJ noted that Claimant failed to present any non-
hearsay evidence in support of an equitable estoppel claim despite having been
afforded a full and fair opportunity to do so. F.F. No. 5(e). Although Claimant
testified that her surgeon, Dr. Siddiqi, informed her that her surgery was pre-
approved, she presented no corroborative evidence to support that statement. Id.


             Additionally, although Claimant submitted her medical bills into
evidence, her counsel indicated they were introduced for the limited purpose of
payment for the cervical injury if the WCJ found Claimant’s neck condition to be
work-related. N.T., 6/14/11, at 16; R.R. at 17a. In other words, Claimant’s
counsel did not ask that the bills be paid on the basis of equitable estoppel



                                         16
regardless of whether the WCJ found Claimant’s cervical injury to be work-
related.


                Finally, we recognize Claimant’s counsel’s September 2011 letter
brief to the WCJ, submitted after the June 2011 WCJ’s hearing, asserts
“Employer’s claims adjuster explicitly granted pre-approval for Claimant’s
cervical surgery,” and that Claimant’s medical providers relied upon this pre-
approval to their detriment. See Claimant’s Letter Br., 9/30/11, at 2 (Claimant’s
Br., App. C).3 However, the next paragraph states:

                       Claimant, the innocent victim of Employer’s
                violation of its oath to cover the surgical treatment, was
                forced to file her petition for review and asks your Honor
                to grant it so that Employer will be required to honor its
                word and pay the outstanding bills, which will thus
                remove Claimant from collections activity.

Id.


                As the WCJ notes, Claimant’s counsel’s letter brief requests that the
review petition be granted in order for Employer to pay the medical bills. F.F. No.
5(g). “Again, there is no request that Employer pay the bills on an equitable
estoppel theory if the cervical injury was not found to be work related.” Id. To
that end, Claimant cited no case law addressing the application of equitable
estoppel. Rather, Claimant requested that the WCJ grant the review petition and
find the cervical injury work related in order for the bills to be paid. Id.



      3
           See WCJ’s Remand Op., 8/21/15, Ex. J-2.



                                              17
            Summarizing, we agree with the Board and the WCJ that Claimant
failed to preserve an equitable estoppel claim before the WCJ. Claimant did not
argue before the WCJ that Insurer be held liable for Claimant’s cervical surgery
bills based on an equitable estoppel theory regardless of whether the WCJ granted
or denied the review petition. Further, Claimant did not present any competent
evidence corroborating her hearsay assertions that Insurer promised to pay for
Claimant’s cervical surgery regardless of whether the WCJ determined her neck
condition to be work-related. As such, Claimant failed to put the WCJ on notice
that she sought payment of her medical bills based on a theory of equitable
estoppel even assuming the WCJ determined that her cervical surgery was not
work-related. Westinghouse.


            For these reasons, we affirm the Board’s order.



                                     ROBERT SIMPSON, Judge




                                       18
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sonya Privette-James,                  :
                        Petitioner     :
                                       :
            v.                         :   No. 933 C.D. 2016
                                       :
Workers' Compensation Appeal           :
Board (University of Pennsylvania),    :
                        Respondent     :


                                     ORDER

            AND NOW, this 22nd day March, 2017, for the reasons stated in the
foregoing opinion, the order of the Workers' Compensation Appeal Board is
AFFIRMED.




                                      ROBERT SIMPSON, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sonya Privette-James,                          :
                  Petitioner                   :
                                               :
               v.                              :
                                               :
Workers’ Compensation Appeal                   :
Board (University of Pennsylvania),            :    No. 933 C.D. 2016
                  Respondent                   :    Submitted: October 21, 2016



BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge



OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                                   FILED: March 22, 2017

               As I believe Petitioner has preserved her equitable estoppel claim, and
as I further believe she should otherwise prevail, I must dissent.
               Petitioner relied on the actions of Respondent in seeking the medical
procedure at issue. Her arguments below, while not infused with “magic words,”
nonetheless were sufficiently articulated, and clearly embraced equitable estoppel
as their foundation. To read the record otherwise, as the Majority does, not only
eviscerates the principles from which this species of estoppel arises, but does
permanent damage to the underlying purpose of the Workers’ Compensation Act1



      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
itself and its “humanitarian objectives.” Peterson v. Workmen's Compensation
Appeal Board (PRN Nursing Agency), 597 A.2d 1116, 1120 (1991).
           I must therefore dissent.



                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                       JMC-2
