Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Sep 22 2009, 8:42 am
of the supreme court, court of appeals and tax court

CLERK

APPELLANT PRO SE: FRANCEAN (MOAD) BOHM Rochester, Indiana

ATTORNEY FOR APPELLEES: LISA M. DILLON Due Doyle Fanning & Metzger, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
FRANCEAN (MOAD) BOHM, Appellant-Plaintiff, vs. ANDERSON WOODS, INC. and, LIBERTY MUTUAL INSURANCE CO., Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 93A02-0812-EX-1151

APPEAL FROM THE FULL WORKER'S COMPENSATION BOARD OF INDIANA The Honorable Linda Peterson Hamilton, Chairperson Case No. 177291

September 22, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Francean (Moad) Bohm ("Bohm") appeals the decision of the Full Worker's Compensation Board of Indiana ("the Board") affirming the decision of the single hearing member denying Bohm's bad faith claim against Anderson Woods, Inc. ("the Employer") and the Employer's worker's compensation insurance carrier, Liberty Mutual Insurance Company ("Liberty Mutual"). The broad issue presented in this appeal is: whether the Board correctly determined that Bohm failed to meet her burden of proving bad faith on the part of the Employer and Liberty Mutual. We summarily affirm the Board. FACTS AND PROCEDURAL HISTORY Bohm suffered an accidental work-related injury to her left shoulder on May 6, 2005, and ultimately voluntarily terminated her employment. She filed an Application for Adjustment of Claim on October 4, 2005 related to that injury. At a pre-trial

conference held on September 26, 2006, the Employer agreed to pay her disability payments based on the permanent partial impairment ("PPI") rating of 20% of the upper extremity assigned by a physician to Bohm. Bohm provided the Employer with signed medical releases and the most recent office notes from one of her physicians for the purpose of evaluating Bohm's request for additional medical treatment. A hearing was held on December 4, 2006 before a single hearing member on the following issues: 1) whether Bohm was entitled to temporary total disability ("TTD") benefits; 2) if so, for what time period; 3) whether Bohm was entitled to past and future medical treatment; and 4) whether Bohm was entitled to additional PPI benefits. The single hearing member awarded Bohm TTD benefits from the date of her termination
2

through May 15, 2006, finding that any medical treatment incurred after that date was not attributable to her work injury. The hearing member further found that her average weekly wage was $500, and found that Bohm was not entitled to any additional PPI benefits. The Employer did not appeal the award of TTD benefits or the average weekly wage determination and paid the award. On September 24, 2007, Bohm filed a "Motion to Reinstate Case." Appellant's App. at 50-51. After discovery was conducted, a second hearing was held before a single hearing member on April 21, 2008. Bohm requested that the single hearing member address numerous issues relating to entitlement to additional TTD benefits, reimbursement for medical care, and whether Bohm was entitled to an award on a bad faith claim against the Employer and Liberty Mutual. The single hearing member

determined that he would hear the issue of Bohm's bad faith claim, but would not address the other issues as they previously had been heard and decided at the December 4, 2006 hearing. In support of her bad faith claim, Bohm argued that the Employer's failure to provide compensation for additional physical therapy and Microfet recommended by one of her physicians, not providing compensation for medical treatment with another physician, increasing her workload after her injury, and discovery issues amounted to bad faith. The single hearing member disagreed and declined to issue an award to Bohm. Bohm appealed the decision to the Board on May 2, 2008. The Board heard her appeal and issued its decision affirming the decision of the single hearing member. Bohm appeals.
3

DISCUSSION AND DECISION As an initial matter, we note that Bohm has chosen to proceed pro se. We have held on numerous occasions that litigants who choose to proceed pro se will be held to the same rules of procedure as trained legal counsel and must be prepared to accept the consequences of their actions. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). Furthermore, while we prefer to decide cases on the merits, we will deem alleged errors waived where an appellant's noncompliance with the rules of appellate procedure is so substantial that it impedes our consideration of the alleged errors. Id. "The purpose of the appellate rules, especially Ind. Appellate Rule 46, is to aid and expedite review, as well as to relieve the appellate court of the burden of searching the record and briefing the case." Id. The argument section of an appellant's brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on. . . ." Ind. Appellate Rule 46(A)(8)(a). We will not consider an appellant's claims when she fails to present cogent arguments supported by authority as required by the rules. Shepherd, 819 N.E.2d at 463. "If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties." Id. This we will not do. Here, the argument section of Bohm's brief is devoid of citation to authority as required by the appellate rules. Furthermore, Bohm fails to make any colorable showing of alleged error. Accordingly, Bohm's failure to develop cogent argument waives the
4

issues she raises on appeal. Notwithstanding that waiver, we find that Bohm has failed to make a showing of error. The decision of the Board is summarily affirmed. Affirmed. NAJAM, J., and BARNES, J., concur.

5



Download 09220906jsk.pdf

Indiana Law