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 
2

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 
3

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 
4

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 
5

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.
6

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.
7

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 
8

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 
9

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.
10

(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).
11

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).
12

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, 
13

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 
14

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 
15

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 Act2be 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 PrivetteJames 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.
16

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 nonhearsay 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 preapproved, 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 
17

regardless of whether the WCJ found Claimant’s cervical injury to be workrelated.

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 preapproval 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.
18

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sonya Privette-James, :

Petitioner :

:

v. : No. 933 C.D. 2016

:

Workers' Compensation Appeal :

Board (University of Pennsylvania), :

Respondent :

O R D E R

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.
JMC-2

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