        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carolyn Cannon,                          :
                          Petitioner     :
                                         :
             v.                          :   No. 841 C.D. 2018
                                         :   Submitted: October 26, 2018
Workers’ Compensation Appeal             :
Board (The Home Depot),                  :
                      Respondent         :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: March 19, 2019


             Petitioner Carolyn Cannon (Claimant) petitions for review of an order
of the Workers’ Compensation Appeal Board (Board), dated May 24, 2018. The
Board affirmed the decision of Workers’ Compensation Judge Joseph Stokes (WCJ
Stokes), denying Claimant’s penalty petition (Petition). For the reasons set forth
herein, we affirm.
             Claimant worked for The Home Depot U.S.A., Inc. (Employer) in its
electrical department. (Reproduced Record (R.R.) at 331a.) On January 4, 2004,
Claimant sustained a work-related injury to her left knee, after becoming startled by
a customer while on a ladder, causing her left foot to slip off one of the ladder’s
steps, onto a step below and causing her left knee to bend backwards. (Id.)
Employer did not issue a notice of compensation payable but appears to have
accepted liability for Claimant’s work-related injury.          (Id. at 334a-35a.)      A
Supplemental Agreement executed by the parties and filed with the Bureau of
Workers’ Compensation for the purpose of suspending Claimant’s wage-loss
benefits described Claimant’s work-related injury as a sprain, strain, tear, and jam
of the left knee.1 (Id. at 331a.)
             On August 10, 2009, Employer filed a petition to terminate
compensation benefits and a petition to review compensation benefits, alleging in
both petitions that Claimant’s workers’ compensation benefits should have been
terminated as of January 22, 2009, because Claimant had fully recovered from her
work-related injury by that date. (Id.) By decision and order dated August 30, 2012,2
Workers’ Compensation Judge Kathleen M. DiLorenzo (WCJ DiLorenzo) denied
Employer’s petitions. (Id. at 331a-36a.) In so doing, WCJ DiLorenzo concluded
that Employer failed to establish that Claimant had fully recovered from her
work-related injury, as described in the Supplemental Agreement. (Id. at 334a-35a.)
WCJ DiLorenzo also concluded that Employer failed to meet its burden of proof
with respect to the review petition.        (Id. at 335a.)   Employer appealed WCJ
DiLorenzo’s decision and order to the Board, arguing that WCJ DiLorenzo redefined
Claimant’s work-related injury to include injuries to the left ankle instead of injuries
solely to the left knee.            (Id. at 341a.)   By decision and order dated
September 16, 2014, the Board affirmed, holding that WCJ DiLorenzo did not



      1
          The parties agreed to suspend Claimant’s wage-loss benefits because Claimant had
returned to work with no loss in earnings.
      2
        The decision and order was dated August 29, 2012, but was not circulated until
August 30, 2012.

                                             2
redefine Claimant’s work-related injury to include injuries to the left ankle. (Id.
at 340a-44a.)
                On March 6, 2014—prior to the Board’s September 16, 2014 decision
affirming WCJ DiLorenzo’s order—Claimant filed her Petition, alleging that
Employer violated the Workers’ Compensation Act (Act)3 as to her left ankle injury,
because: (1) Employer refused to cover reasonable medical treatment; (2) the
description of Claimant’s work-related injury was incorrect; (3) Claimant’s injury
had worsened; and (4) Claimant’s injury caused a decrease in her earning power.
(Id. at 6a.) By decision and order dated May 30, 2017,4 WCJ Stokes denied
Claimant’s Petition, concluding that Claimant did not meet her burden of proving
that Employer violated the Act because she failed to prove that the left ankle was
part of the work-related injury. (Id. at 56a.) In so doing, WCJ Stokes discussed
WCJ DiLorenzo’s decision and order and acknowledged that, during the
proceedings before WCJ DiLorenzo, Claimant stated that she had new symptoms
related to her left ankle. (Id. at 55a.) WCJ Stokes indicated, however, that: (1) WCJ
DiLorenzo found the Supplemental Agreement—which limits the work-related
injury to the left knee—to be controlling; and (2) the Board noted that WCJ
DiLorenzo did not amend Claimant’s injury description to include the left ankle.
(Id.) WCJ Stokes, therefore, relied on both WCJ DiLorenzo’s decision and the
Board’s decision in concluding that Claimant’s Petition failed to establish a violation


       3
           Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
       4
         WCJ Stokes’ initial decision was issued on June 29, 2015. This decision failed to make
a finding concerning the nature of the accepted work-related injury, prompting Employer and
Claimant to appeal this initial decision to the Board. The Board remanded the matter to WCJ
Stokes for a determination of the accepted work-related injury. WCJ Stokes’ May 30, 2017
decision, which is the decision relevant to this appeal, is the decision and order that WCJ Stokes
issued on remand from the Board.

                                                3
of the Act. (Id. at 55a-56a.) Claimant appealed WCJ Stokes’ decision to the Board,
which affirmed on the grounds that Claimant failed to prove that Employer violated
the Act by not paying medical bills related to Claimant’s left ankle. (Id. at 70a-71a.)
In other words, the Board concluded that, due to the fact that Claimant’s
work-related injury is limited to her left knee, and Employer would only be
responsible for the payment of medical bills concerning work-related injuries,
non-payment of bills for injuries to Claimant’s left ankle does not violate the Act.
(Id.) Claimant now petitions this Court for review.
              On appeal,5 Claimant argues that the Board committed an error of law
by affirming WCJ Stokes’ decision and order because WCJ Stokes erroneously
concluded that Claimant did not meet her burden of proving that Employer violated
the Act. Specifically, Claimant argues that she provided evidence that she sustained
an injury to and underwent necessary treatment for her left ankle, and Employer
refused to pay for the medical bills associated therewith. In response, Employer
argues that the Board properly affirmed WCJ Stokes’ decision because Claimant
failed to meet her burden of proving that Employer violated the Act. Specifically,
Employer argues that the medical bills at issue do not relate to a sprain, strain, tear,
and jam of Claimant’s left knee, which is the accepted work injury.
              Where a claimant files a penalty petition, the claimant has the burden
to prove that the employer has violated the Act. Shuster v. Workers’ Comp. Appeal
Bd. (Pa. Human Relations Comm’n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000),
appeal denied, 781 A.2d 151 (Pa. 2001); Sims v. Workers’ Comp. Appeal Bd. (Sch.


       5
          This Court’s review is limited to a determination of whether an error of law was
committed, whether necessary findings of fact are supported by substantial evidence, or whether
constitutional rights were violated. Vinglinsky v. Workmen’s Comp. Appeal Bd. (Penn
Installation), 589 A.2d 291, 293 (Pa. Cmwlth. 1991).

                                              4
Dist. of Phila.), 928 A.2d 363, 366 (Pa. Cmwlth. 2007), appeal denied, 946 A.2d
690 (Pa. 2008). The alleged violation “must appear in the record in order for a
penalty to be appropriate.” DeVore v. Workmen’s Comp. Appeal Bd., 645 A.2d 917,
920 (Pa. Cmwlth.), appeal denied, 655 A.2d 993 (Pa. 1994). Nonpayment of
medical bills for work-related injuries is actionable under the Act; however,
employers and their insurers are only liable for the payment of medical bills if the
bills arise from the treatment of work-related injuries. Sch. Dist. of Phila., 928 A.2d
at 366.
               Here, Claimant argues that Employer violated the Act because it
refused to pay medical bills for treatment of her left ankle, which Claimant contends
is part of her work-related injury. As explained by WCJ DiLorenzo and reiterated
by WCJ Stokes, however, the accepted work injury is a “sprain, strain, tear, and jam
of the left knee.” (R.R. at 55a, 331a (emphasis added).) Throughout the pendency
of these proceedings, Claimant has not sought to modify the description of the
accepted work injury to include the left ankle. Due to the fact that Employer is only
liable for payment of work-related injuries, Employer is not required to pay medical
bills for injuries to Claimant’s left ankle and did not violate the Act by failing to do
so. Accordingly, we conclude that the Board did not commit an error of law by
affirming WCJ Stokes’ decision, which denied Claimant’s Petition.6

       6
         Claimant also seems to suggest that WCJ Stokes capriciously disregarded the medical
evidence that Claimant presented to establish that she suffered a work-related injury to her left
ankle while working for Employer on January 4, 2004. To the extent that Claimant has developed
this argument in her brief, we disagree. As explained further in this opinion, WCJ Stokes was only
required to consider whether Employer violated the Act as it related to the accepted work-related
injury—i.e., a sprain, strain, tear, and jam of the left knee. If Claimant desired to amend the
description of the work-related injury to include an injury to her left ankle, Claimant had the
opportunity to file a review petition. Contrary to Employer’s arguments, Claimant would not have
been precluded from doing so by collateral estoppel because the issue had not been previously


                                                5
               Based on the discussion above, we affirm the order of the Board.




                                                P. KEVIN BROBSON, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




litigated. Collateral estoppel only applies to prevent parties from re-litigating issues. Pucci v.
Workers’ Comp. Appeal Bd. (Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998).
The description of the work injury has never been litigated because neither Claimant nor Employer
has ever sought to expand or modify the description of the injury; rather, the description of the
work injury was the subject of a prior appeal to the Board because Employer believed that WCJ
DiLorenzo had amended Claimant’s work injury to include the left ankle, which the Board
concluded she had not. It is also clear that WCJ Stokes did not consider Claimant’s Petition as an
attempt to amend her injury description. Thus, WCJ Stokes could not have capriciously
disregarded evidence he was not even required to consider. See Capasso v. Workers’ Comp.
Appeal Bd. (RACS Assocs., Inc.), 851 A.2d 997, 1002 (Pa. Cmwlth. 2004) (“capricious disregard
occurs when the fact finder deliberately ignores relevant, competent evidence.”).

                                                6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Carolyn Cannon,                      :
                      Petitioner     :
                                     :
           v.                        :   No. 841 C.D. 2018
                                     :
Workers’ Compensation Appeal         :
Board (The Home Depot),              :
                      Respondent     :



                                   ORDER


           AND NOW, this 19th day of March, 2019, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                     P. KEVIN BROBSON, Judge
