Boulin v. Brandywine Senior Care, Inc.
| Decision Date | 09 May 2023 |
| Docket Number | 139 C.D. 2022 |
| Parties | Marie Louise Boulin, Petitioner v. Brandywine Senior Care, Inc. (Workers' Compensation Appeal Board), Respondent |
| Court | Pennsylvania Commonwealth Court |
Marie Louise Boulin (Claimant), appearing pro se,[1] has petitioned this Court to review an adjudication of the Workers' Compensation Appeal Board (Board), affirming the decision of the Workers' Compensation Judge (WCJ), which granted the termination petition filed by Brandywine Senior Care, Inc. (Employer) under the Workers' Compensation Act (the Act).[2] Upon careful review, we affirm.
In August 2018, Claimant sustained work-related injuries to her right ankle, shoulder, and mid/lower back while employed as a nurse's aide.[3] As of January 31, 2020, Claimant remained disabled from a right calcaneal avulsion fracture (Heel Bone Fracture) but had fully recovered from her other injuries.
On June 3, 2020, Dr. Paul Horenstein, a board-certified orthopedic surgeon with a subspeciality in foot and ankle surgery, performed an independent medical examination (IME) on Claimant. Following the IME, Dr. Horenstein developed an opinion that Claimant had fully recovered from her Heel Bone Fracture and could return to her pre-injury job. Accordingly, Employer filed a petition to terminate Claimant's disability benefits as well as a petition to suspend benefits, seeking an alternative finding that Claimant had rejected its return offers in bad faith.
Before the WCJ, Claimant submitted deposition testimony explaining that 90 to 95% of her pre-injury job as a nurse's aide was spent on her feet. Claimant stated that her ongoing pain, which she described as a "7 out of 10," intermittent, "knife cutting" sensation, had become increasingly more generalized. WCJ's Decision at 7. Claimant acknowledged that she could perform minimal chores and activities around the house but explained that she was still unable to grocery shop. Claimant testified that she was not recovered from her work-related injury, still could not bear weight on her right foot, and had not yet been cleared for work by her treating physician, Dr. Mark Allen. Upon Claimant's live and updated testimony at the WCJ's hearing weeks later, she reiterated the following: her injury had not improved, she required continued use of boots and crutches to manage pain, and she had endured additional injuries along with her Heel Bone Fracture.
Both Claimant and Employer also presented expert medical testimony to the WCJ. Claimant's treating orthopedic surgeon testified by deposition that Claimant's foot and ankle pain had not changed since he began treating her. Ultimately, Dr. Allen opined that Claimant could not return to her pre-injury job because she had not fully recovered from her Heel Bone Fracture. He admitted that Claimant's inability or refusal to weight-bear on her right foot was not the result of his instruction. Dr. Allen further acknowledged that Claimant had relied on a boot and crutches for "an excessively long period of time" and that his attempts to wean her from these supports were "complicated" by "chronic and persistent pain." WCJ's Decision at 6.
Dr. Horenstein testified via deposition for Employer. He explained that Claimant informed him that Dr. Allen had advised her not to bear weight on her right foot. Dr. Horenstein testified that he had performed the "gold standard" of stability and ankle testing upon Claimant, that Claimant yielded a normal result, and that his examination revealed no tenderness. Accordingly, based upon his review of the records and the examination performed, Dr. Horenstein opined that Claimant had fully recovered from her Heel Bone Fracture. Dr. Horenstein also reiterated that Claimant could perform her pre-injury job.[4]
The WCJ granted Employer's termination petition, concluding that Claimant had fully recovered from her Heel Bone Fracture.[5] The WCJ reached this conclusion after finding Dr. Horenstein to be more credible than Dr. Allen. The WCJ determined that the IME showed no objective findings of a Heel Bone Fracture and was supported by stability testing, which Dr. Horenstein credibly testified was the "gold standard" to identify such fractures. WCJ's Decision at 8. The WCJ emphasized that despite his testimony that Claimant had not fully recovered, Dr. Allen did not perform stability testing, based his opinion on Claimant's subjective, uncredible complaints, and did not document any symptoms (e.g., swelling or atrophy) consistent with a Heel Bone Fracture in his last examination of Claimant. Further, the WCJ found that Dr. Allen testified that Claimant's pain had not changed during her treatment, which contrasted with Claimant's testimony that her pain had become more general. Concerning Claimant, the WCJ specifically determined that she was not credible based on her demeanor and to the extent that Dr. Horenstein credibly testified that Claimant informed him that Dr. Allen instructed her not to weight-bear, which Dr. Allen denied in his deposition.
Claimant appealed to the Board, which affirmed the WCJ's decision. Claimant timely petitioned this Court for review.[6]
On appeal, Claimant challenges the WCJ's factual findings and credibility determinations. See Claimant's Br. at 6. Further, Claimant argues that the WCJ failed to issue a reasoned decision. See id. Finally, Claimant takes issue with the Board's review of the WCJ's decision, suggesting that it "missed information in the case." Id.
"The Pennsylvania Rules of Appellate Procedure [Rules] were promulgated to govern practice and procedure before the appellate courts[,] and noncompliance with the [R]ules only makes this [C]ourt's review of appeals more difficult." Levin v. Bd. of Supervisors of Benner Twp., 669 A.2d 1063, 1068 n.3 (Pa. Cmwlth. 1995), aff'd., 689 A.2d 224 (Pa. 1997). The Rules prescribe a mandatory brief format for lawyers and non-lawyers alike. Richardson v. Pa. Ins. Dep't, 54 A.3d 420, 425 (Pa. Cmwlth. 2021). To assess whether we can reach the merits of a claim, we must consider whether the defects are so substantial that they preclude "meaningful appellate review." Tewell v. Unemployment Comp. Bd. of Rev., 279 A.3d 644, 652, n.9 (Pa. Cmwlth. 2022).
Rule 2119 provides that an "argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa. R.A.P. 2119(a). "The purpose of this rule is to facilitate the reader's comprehension of the arguments being made." Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999). While we are generally inclined to construe pro se materials liberally, it is not this Court's function to develop a party's arguments. C.M. v. Pa. State Police, 269 A.3d 1280, 1285 (Pa. Cmwlth. 2022). A party's failure to adhere to Rule 2119 and properly develop an argument may result in waiver. City of Phila. v. Workers' Comp. Appeal Bd. (Calderazzo), 968 A.2d 841, 846 n.4 (Pa. Cmwlth. 2009).
Here, despite raising four issues in her statement of questions, Claimant presents her argument under a single heading. Claimant's Br. at 6, 13-36. Further, Claimant presents no legal authority to support her claims, which are nearly indecipherable. Despite our general inclination to construe pro se filings liberally, we are compelled to find waiver as we cannot make sense of Claimant's arguments on appeal. C.M.; Calderazzo; Robinson.
Absent waiver, Claimant's appeal fails on the merits. In her first two issues, Claimant purports to challenge the WCJ's factual findings and credibility determinations. Our review on appeal is limited to considering whether substantial evidence supports the WCJ's factual findings, not whether evidence exists to support contrary findings. DTE Energy Co., Inc. v. Workers' Comp. Appeal Bd., 245 A.3d 413, 421 (Pa. Cmwlth. 2021) (DTE Energy). It is well settled that "the WCJ is the fact[-]finder." Hawbaker v. Workers' Comp. Appeal Bd. (Kriner's Quality Roofing Servs. & Uninsured Emp. Guar. Fund), 159 A.3d 61, 69 (Pa. Cmwlth. 2017). As such, the WCJ may utilize the demeanor of witnesses as a factor to assess credibility. Com. v. Story, 383 A.3d 155, 168 (Pa. 1978). It is within the WCJ's sole discretion to resolve evidentiary conflicts and make credibility determinations. Hawbaker, 159 A.3d at 69. This Court may not reweigh the evidence or the WCJ's credibility determinations. Id. Indeed, this Court "may overturn a credibility determination only if it is arbitrary and capricious, so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." W. Penn Allegheny Health Sys., Inc. v. Workers' Comp. Appeal Bd. (Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021) (citation omitted).
Here the WCJ credited Dr. Horenstein's opinion that Claimant had fully recovered, in part, because of his comprehensive IME, which showed no objective findings of a Heel Bone Fracture. WCJ's Decision, 7/28/21, Finding of Fact (F.F.), at 9. Further, the WCJ rejected the testimonies of Claimant, at least in part, due to her demeanor, and Dr. Allen, to the extent his opinion was supported by Claimant's uncredible subjective complaints. Id., F.F. at 10, 12. Accordingly, the WCJ's findings are supported by substantial evidence of record that Claimant...
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