         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eliott Jurist,                                :
                              Petitioner      :
                                              :
                 v.                           :   No. 1678 C.D. 2018
                                              :   Submitted: May 17, 2019
Workers’ Compensation Appeal                  :
Board (Trustees of the Presbytery             :
of Philadelphia),                             :
                         Respondent           :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: August 7, 2019


                 Eliott Jurist (Claimant), pro se, petitions for review of an order of the
Workers’ Compensation Appeal Board (Board), dated October 31, 2018. The Board
affirmed the decision of a Workers’ Compensation Judge (WCJ), denying
Claimant’s review petition and granting the termination petition filed by Trustees of
the Presbytery of Philadelphia (Employer). For the reasons set forth below, we
affirm the Board’s order.
                 Claimant worked for Employer as a camp cook at a summer camp. On
August 6, 2014, Claimant sustained a work-related injury to his left foot when a tray
of food/cooking materials fell onto his foot and lacerated his inner heel. Employer
accepted liability for a left foot contusion pursuant to a Notice of Compensation
Payable. Thereafter, on September 27, 2016, Employer filed a termination petition,
asserting that Claimant had fully recovered from his work-related injury as of
September 9, 2016. Subsequent thereto, on December 16, 2016, Claimant, who at
that time was represented by counsel, filed a review petition, asserting that the
description of his injury was incorrect and should be amended to include
post-traumatic osteoarthritis in his left ankle and foot, an aggravation of preexisting
degenerative joint disease in his left ankle and foot, synovitis and tenosynovitis in
his left lower extremity, an aggravation of venous insufficiency in his left lower
extremity, chronic pain, and post-traumatic fibroarthrosis in his left ankle and foot.
             In support of his review petition and in opposition to Employer’s
termination petition, Claimant testified on his own behalf and presented the
deposition testimony of Barry A. Ruht, M.D. In support of its termination petition
and in opposition to Claimant’s review petition, Employer presented the deposition
testimony of Paul A. Horenstein, M.D. Based on the evidence presented, the WCJ
found Claimant’s testimony “to be entirely unpersuasive and unable to support his
positions because [his] testimony [was] extremely inconsistent with the medical
records testified to in this matter.” (WCJ’s Decision at 11-13.) The WCJ further
found Dr. Horenstein’s opinions to be significantly more credible than Dr. Ruht’s
opinions. (Id.) Based on these credibility determinations, the WCJ concluded that
Claimant had failed to meet his burden of proving that he sustained any injuries in
addition to the accepted left foot contusion as a result of his August 6, 2014
work-related injury. The WCJ also concluded that Employer had met its burden of
proving that Claimant had fully recovered from his August 6, 2014 work-related
injury.   The WCJ, therefore, denied Claimant’s review petition and granted
Employer’s termination petition.


                                          2
               Claimant appealed the WCJ’s decision to the Board. While Claimant
provided the necessary background information on his appeal form—i.e., the parties’
names and addresses, the date of the WCJ’s decision, the date of Claimant’s injury,
etc.—and attached a copy of the WCJ’s decision to his appeal form, Claimant did
not set forth any specific findings of fact that he wished to challenge or identify any
errors of law that he believed the WCJ had committed. Claimant left those sections
of his appeal form entirely blank. As a result of the deficiencies in Claimant’s appeal
form, Employer filed a motion to quash with the Board, arguing that Claimant
waived all of his issues on appeal by failing to plead the reasons for his appeal.
Although the Board acknowledged the merit of Employer’s motion to quash, the
Board chose to address the merits of Claimant’s appeal because Claimant was pro
se and “likely not well-versed in the appeal procedure.” (Board’s Op. at 3 n.1.)
Ultimately, the Board concluded that the WCJ did not err in granting Employer’s
termination petition, because there was substantial, competent evidence of record to
support the WCJ’s finding that Claimant had fully recovered from his
August 6, 2014 work-related injury. The Board, therefore, affirmed the WCJ’s
decision. Claimant then petitioned this Court for review.
               On appeal to this Court,1 Claimant argues: (1) there is not substantial
evidence of record to support the WCJ’s finding that Claimant had fully recovered
from his August 6, 2014 work-related injury; and (2) the WCJ improperly denied
him the opportunity to present medical evidence that contradicted Dr. Horenstein’s
testimony and opinions and that would establish that Claimant continues to be

       1
         Our review is limited to determining whether an error of law was committed, whether
necessary findings of fact are supported by substantial evidence, and whether constitutional rights
were violated. Combine v. Workers’ Comp. Appeal Bd. (Nat’l Fuel Gas Distrib. Corp.),
954 A.2d 776, 778 n.1 (Pa. Cmwlth. 2008), appeal denied, 967 A.2d 961 (Pa. 2009).


                                                3
disabled as a result of his August 6, 2014 work-related injury.2 In addition to
addressing the merits of those arguments, Employer responds that Claimant waived
all of his issues on appeal by failing to raise any issues or claims of error in his appeal
to the Board as required by 34 Pa. Code § 111.11(a)(2).
               Before addressing the merits of Claimant’s appeal we must first
consider Employer’s contention that Claimant waived all of his issues on appeal.
Pursuant to Pennsylvania Rule of Appellate Procedure 1551(a), generally “[n]o
question shall be heard or considered by [this C]ourt which was not raised before the
government unit.” Moreover, courts have recognized that the waiver doctrine is
applicable in workers’ compensation proceedings. Jonathan Sheppard Stables v.
Workers’ Comp. Appeal Bd. (Wyatt), 739 A.2d 1084, 1088-89 (Pa. Cmwlth. 1999).
The Board’s regulation found at 34 Pa. Code § 111.11(a) sets forth the specific
information that a party must include in his appeal form to the Board in order to
properly preserve an issue for the Board’s review. It provides, in pertinent part:
               (a) An appeal or cross appeal shall be filed with the Board
               on a form provided by the Board . . . . All forms must
               contain the following information:
                     ....
                     (2) A statement of the particular grounds upon
                     which the appeal is based, including reference to the
                     specific findings of fact which are challenged and
                     the errors of the law which are alleged. General
                     allegations which do not specifically bring to the

       2
         As part of the second issue, Claimant contends that he has medical evidence to support
his claim that he continues to be disabled as a result of his August 6, 2014 work-related injury.
Claimant attached to his brief as a “supplemental record” copies of medical reports and records,
which he purports support his claim that he continues to be disabled due to his work-related injury.
By order dated April 9, 2019, this Court granted Employer’s application to strike non-conforming
items attached as “supplemental record” to Claimant’s brief, explaining that the documents
included in Claimant’s “supplemental record” were not part of the certified record in this matter
and, therefore, could not be considered by the Court on appeal.

                                                 4
                       attention of the Board the issues decided are
                       insufficient.
34 Pa. Code § 111.11(a)(2). “[W]hen a party fails to abide by the requirements of
34 Pa. Code § 111.11(a)(2) [to raise] an issue with the requisite specificity in the
appeal documents before the Board, that party fails to preserve the issue under
34 Pa. Code § 111.11(a)(2).” McGaffin v. Workers’ Comp. Appeal Bd. (Manatron,
Inc.), 903 A.2d 94, 101 (Pa. Cmwlth. 2006) (emphasis in original); see also Jonathan
Sheppard Stables, 739 A.2d at 1088. “‘[T]he mere filing of an appeal does not
preserve issues which are not specifically raised’ in the appeal documents before the
Board.” McGaffin, 903 A.2d at 101 (quoting Fiorentino v. Workmen’s Comp.
Appeal Bd. (Concrete Indus., Inc.), 571 A.2d 554, 556 (Pa. Cmwlth. 1990)).
               In our unreported panel decision in Grim v. Workers’ Compensation
Appeal Board (Adams County) (Pa. Cmwlth., No. 1088 C.D. 2009, filed
January 5, 2010),3 this Court considered whether the claimant had waived her issues
on appeal to this Court due to her failure to identify any issues or claims of error in
her appeal to the Board. In that case, the pro se claimant appealed the WCJ’s
decision denying her claim petition to the Board via handwritten letter. Grim, slip
op. at 5. In her handwritten letter, the claimant indicated that she did not have the
proper appeal form and expressed concern that her appeal would be late if she waited
to contact the Board until she received the proper form. Id. The claimant, therefore,
requested that the Board grant her additional time to file her appeal or accept her
handwritten letter as her appeal. Id. The claimant also indicated that her attorneys
had victimized her by not providing the WCJ with any evidence to prove that she
had sustained a work-related injury. Id. The Board reviewed the matter, concluded

       3
         Pursuant to Commonwealth Court Internal Operating Procedure § 414(a), “an unreported
panel decision of this [C]ourt issued after January 15, 2008, [may be cited] for its persuasive value,
but not as binding precedent.” 210 Pa. Code § 69.414(a).

                                                  5
that the WCJ did not commit an error of law by denying the claimant’s claim
petition, and affirmed the WCJ’s decision and order. Id at 4. The claimant then
appealed the Board’s decision to this Court, and we affirmed the Board’s decision.
Id. at 7. In so doing, we concluded, inter alia, that Claimant waived all of her issues
on appeal by failing to preserve any issues before the Board. Id. at 6. We reasoned:
             [The c]laimant’s appeal letter does not include any
             reference to specific findings of fact that [the c]laimant
             wished to challenge nor does the letter allege any errors of
             law. The only issue that may be gleaned from the letter is
             [the c]laimant’s allegation that her attorneys were
             negligent or incompetent. However, an appeal to the
             Board is not the proper forum for [the c]laimant’s claim
             that she was victimized by her attorneys’ conduct. In
             addition, we note that there is nothing in the certified
             record to show that [the c]laimant supplemented her initial
             appeal letter with an appeal form or letter setting forth the
             particular grounds upon which her appeal was based. As
             such, we are constrained to agree with [the e]mployer that
             [the c]laimant has waived all issues on appeal by failing to
             preserve any issues before the Board.
Id at 5-6. (footnote omitted).
             The factual scenario presented in this case is similar to the factual
scenario that we reviewed in Grim. Here, Claimant’s appeal form to the Board did
not reference any specific findings of fact that he wished to challenge or identify any
errors of law that he believed the WCJ had committed in rendering her decision.
Rather, Claimant left those sections of his appeal form completely blank. There is
also no indication in the certified record that Claimant attempted to supplement his
original appeal form to set forth the issues or claims of errors upon which his appeal
was based. The mere filing of Claimant’s appeal form with the Board does not serve
to preserve any issues on appeal. See McGaffin, 903 A.2d at 101. In addition, while
the Board chose to review the matter on appeal, it does not change the fact that

                                          6
Claimant      failed     to    comply      with     the     requirements       set    forth    in
34 Pa. Code § 111.11(a)(2). For these reasons, we must conclude that Claimant has
waived all of his issues on appeal by failing to preserve any issues in his appeal to
the Board.4
               Accordingly, we affirm the Board’s order.




                                                P. KEVIN BROBSON, Judge




       4
          While we have declined to reach the merits of Claimant’s appeal based on waiver, we
note that Claimant’s arguments essentially challenge the WCJ’s determinations of credibility and
evidentiary weight. As a fact-finder, matters of credibility, conflicting medical evidence, and
evidentiary weight are within the WCJ’s exclusive province. Williams v. Workers’ Comp. Appeal
Bd. (USX Corp.-Fairless Works), 862 A.2d 137, 143 (Pa. Cmwlth. 2004). If the WCJ’s findings
are supported by substantial evidence, they are binding on appeal. Agresta v. Workers’ Comp.
Appeal Bd. (Borough of Mechanicsburg), 850 A.2d 890, 893 (Pa. Cmwlth. 2004). In its opinion,
the Board concluded that the WCJ’s findings in support of her decision to grant Employer’s
termination petition were supported by substantial evidence of record, and we perceive no error in
the Board’s analysis in this regard.

                                                7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eliott Jurist,                             :
                            Petitioner     :
                                           :
                 v.                        :   No. 1678 C.D. 2018
                                           :
Workers’ Compensation Appeal               :
Board (Trustees of the Presbytery          :
of Philadelphia),                          :
                         Respondent        :


                                         ORDER


                 AND NOW, this 7th day of August, 2019, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                           P. KEVIN BROBSON, Judge
