Opinion
No. 1906 C.D. 2013
06-05-2014
Sonya Privette-James, Petitioner v. 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
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). 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 her contention that the WCJ erred by granting Employer's modification petitions and by failing to grant her review petition.
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.
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.
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.
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 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.
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), a board certified orthopedist and one of Claimant's treating physicians. 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.
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.
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.
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.
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:
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.
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.
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).
II. Issues
Claimant presents four issues for review, primarily concerning her denied review petition and Employer's granted modification petition based on earning capacity.
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.
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 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.
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 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.
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.
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).
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 job applications are irrelevant to the merits of Employer's February 2011 modification petition. Rosenberg.
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.
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 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. Consequently, Claimant's reliance on Rosenberg for the proposition that Employer must offer Claimant an in-house position is misplaced. Reichert; Kleinhagan.
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.
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):
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 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 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' 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, 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. 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).
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.
We also reject Claimant's contention that the WCJ capriciously disregarded IME Physician's testimony that Claimant sustained a work-related 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.
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 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 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' 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; 16(c). As noted above, Employer's payment of Claimant's medical expenses does not constitute an admission of liability for an unaccepted injury. 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.
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.
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 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?N.T., 6/14/11, at 15.
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.
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.
[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, 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.
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.
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.
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 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 coverage that may or may not cover the costs for Claimant's non-work related cervical surgery.
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.
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.
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.
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. We leave to the thoughtful discretion of the assigned WCJ whether to reopen the record.
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. --------
In all other respects, we affirm the order of the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th 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.
/s/_________
ROBERT SIMPSON, Judge