FILED
Mar 30 2017, 7:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Carol Modesitt Wyatt Charles S. Hewins
Dugan & Voland, LLC Hewins Law Firm
Indianapolis, Indiana Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Masterbrand Cabinets, March 30, 2017
Appellant, Court of Appeals Case No.
93A02-1609-EX-2228
v. Appeal from the Worker’s
Compensation Board of Indiana
Douglas Waid, The Honorable Linda Peterson
Appellee. Hamilton, Chairman
Application No. C-227286
Barnes, Judge.
Case Summary
[1] Masterbrand Cabinets (“Masterbrand”) appeals a decision of the Indiana
Worker’s Compensation Board (“Board”) awarding temporary total disability
benefits to Douglas Waid. We affirm.
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Issue
[2] Masterbrand raises one issue, which we restate as whether the Board properly
awarded temporary total disability (“TTD”) benefits to Waid following an on-
the-job injury and a termination from his job for misconduct.
Facts
[3] Masterbrand hired Waid in June 2013 as a production associate, which
involved doing physical labor. During his employment Waid was “coached”
for his workplace conduct on several occasions regarding anger issues. Tr. p.
49. On June 6, 2014, Waid slipped while working and injured his lower back.
Waid promptly notified his supervisor of the injury, but he initially thought that
medical care would be unnecessary. However, Waid’s pain got worse, and
Masterbrand eventually referred him to Dr. James Butler. Waid saw Dr. Butler
on June 24, 2014, complaining of shooting pains in his back and pains down
into his leg. Dr. Butler determined that, “to make an absolute causation
determination,” he needed medical records related to Waid’s prior back
problems. Ex. p. 7. Dr. Butler returned Waid to “full duty.” Id. Waid
disagreed with the full duty recommendation, but he did try to return to work.
After working a full shift, he was unable to get out of bed the next day. On
June 26, 2014, he returned to work. Waid got into a verbal altercation with his
supervisor regarding his back pain and his lack of work restrictions. He threw
his ice pack, nearly striking another employee, and cursed at his supervisor.
Masterbrand suspended Waid and terminated his employment effective July 2,
2014.
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[4] Waid returned to Dr. Butler on July 1, 2014, and Dr. Butler placed Waid on
restrictions of “max lifting of 20 lbs and change position as often as needed.”
Id. at 12. On July 28, 2014, Waid had another appointment with Dr. Butler.
Waid continued to complain of severe pain, and Dr. Butler ordered physical
therapy but removed the work restrictions. On September 29, 2014, Dr. Butler
released Waid from treatment, found maximum medical improvement
(“MMI”), and assigned a three percent whole-person impairment rating.
[5] In October 2014, Waid filed a motion to compel an independent medical
examination (“IME”) by an orthopedic surgeon or a neurosurgeon. After a
hearing, the Single Hearing Member found:
2. Plaintiff immediately reported the injury to his
employer.
3. Plaintiff initially told his employer that he felt he would
be okay and advised that he did have prior back
problems.
4. Over the ensuing weekend the condition became worse
and worse.
5. Plaintiff reported the increase in symptoms to his
employer but there was no immediate follow up.
6. Plaintiff was finally seen for medical examination on
June 24, 2014 by James Butler, M.D. Dr. Butler
seemed to be more focused on making a causation
determination than active treatment. Dr. Butler
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declined to place any work restriction in spite of
Plaintiff’s ongoing complaints of pain and limitations.
7. With respect to Plaintiff’s medical history with his
back, he advised Defendant and freely admitted in
testimony to his past history. He established through
the evidence, however, that by June 6, 2014 he was
unrestricted in his physical abilities and doing his full
function for Defendant.
8. Plaintiff was continuing to have difficulty doing full-
duty, as Dr. Butler advised Defendant Plaintiff could so
perform, and was upset about the impact the full-duty
work was having on his back pain.
9. One of Defendant’s representatives advised Plaintiff
that either he could do the job or they would get
someone who would. Plaintiff was terminated shortly
thereafter.
10. Plaintiff saw Dr. Butler on July 1, 2014 and, after
Plaintiff advised Dr. Butler that Defendant had
terminated him, Dr. Butler only then imposed a twenty
(20) pound weight restriction.
11. After receiving a new MRI and comparing it with a
prior one, even though Plaintiff continued to have
sharp pain in his back and in his leg, which Plaintiff
describes as almost unbearable, Dr. Butler released
Plaintiff at maximum medical improvement.
12. The Single Hearing Member finds that the appointment
of an independent medical examiner pursuant to
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Indiana Code 22-3-4-11 is appropriate in the
circumstances.
13. This matter is therefore referred to the Ombudsman
Division of the Worker’s Compensation Board for the
appointment of an independent medical examiner at
the expense of Defendant as a statutory medical
expense.
Appellee’s App. Vol. II pp. 6-7. Dr. Mike Chou examined Waid on August 26,
2015. Dr. Chou found that Waid probably had an exacerbation of a pre-
existing back condition and that “perhaps 10-20%” was attributed to the job
injury. Appellant’s App. Vol. II p. 52. He diagnosed Waid with “bilateral L5
radiculopathy secondary to protruding intervertebral disc at L4-5.” Id. Dr.
Chou stated that Waid “should be able to return to work at sedentary duty” but
that continued symptoms might require surgery. Id. Further, Dr. Chou stated
that Waid would “reach his point of maximum medical improvement either
after this episode of pain resolves without surgery, or if not, then the patient will
reach it after surgery and recovering from that.” Id.
[6] After another hearing, the Single Hearing Member issued findings of fact and
conclusions of law as follows:
1. Defendant introduced evidence designed to
demonstrate that Plaintiff was terminated for just cause
and that Plaintiff’s conduct fell well below the standard
reasonably expected of an employee in relation to his
employer and its representatives.
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2. In the context of determining an injured worker’s
entitlement to temporary total disability or temporary
partial disability benefits, the Board is not required (nor
is it empowered) to make determinations of the justness
of the termination or the level of misconduct of the
injured worker.
3. Instead, the Board must merely determine whether the
injuries sustained at work produced an inability, total
or partial, to work.
4. Unquestionably Plaintiff has an inability to perform
work of the same kind or character as he was
performing when injured.
5. It was Plaintiff’s staunch belief that he was limited in
his ability to work that resulted in the confrontation
which ultimately led to his termination.
6. Plaintiff was correct and the medical records
demonstrate that Plaintiff retains only a very limited
capacity to work at this point; he has been released to
perform work of a sedentary nature.
7. Plaintiff has been so limited since the date of his injury
and that limitation continued through the date of
hearing on this issue.
8. Plaintiff is entitled to an award for his temporary total
disability from June 27, 2014 through the date of
hearing and continuing until terminated in accordance
with the Act and/or when ordered by the Board.
Appellant’s App. Vol. II p. 10.
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[7] Masterbrand appealed the Single Hearing Member’s decision to the Full Board.
Masterbrand argued in part that Waid was not entitled to TTD benefits because
he had been terminated for misconduct. The Full Board affirmed the award
and modified the findings of fact and conclusions of law as follows:
1. Defendant introduced evidence designed to
demonstrate that Plaintiff was terminated for just cause
and that Plaintiff’s conduct fell below the standard
reasonably expected of an employee in relation to his
employer and its representatives.
2. Unquestionably Plaintiff has an inability to perform
work of the same kind or character as he was
performing when injured.
3. It was Plaintiff’s staunch belief that he was limited in
his ability to work and that the doctor showed evidence
bias that resulted in the confrontation that ultimately
led to his termination.
4. Plaintiff is found to be credible.
5. Furthermore, Plaintiff’s inability to work was related to
his work injury in question.
6. Plaintiff was correct and the medical records
demonstrate that Plaintiff retains only a very limited
capacity to work at this point; he has been released to
perform work of a sedentary nature.
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7. Plaintiff has been so limited since the date of his injury
and that limitation continued through the date of
hearing on this issue.
8. Plaintiff is entitled to an award for his temporary total
disability from June 27, 2014 through the date of
hearing and continuing until terminated in accordance
with the Act and/or when ordered by the Board.
Appellant’s App. Vol. II p. 6. Masterbrand now appeals.
Analysis
[8] Masterbrand challenges the Board’s award of TTD benefits to Waid. Our
supreme court has held that the Worker’s Compensation Act is to be liberally
construed to “‘effectuate the humane purposes of the Act.’” Daugherty v. Indus.
Contracting & Erecting, 802 N.E.2d 912, 919 (Ind. 2004) (quoting Talas v. Correct
Piping Co., Inc., 435 N.E.2d 22, 28 (Ind. 1982)). “‘[D]oubts in the application of
terms are to be resolved in favor of the employee, for the passage of the Act was
designed to shift the economic burden of a work-related injury from the injured
employee to the industry and, ultimately, to the consuming public.’” Id.
(quoting Talas, 435 N.E.2d at 28).
[9] In reviewing a worker’s compensation decision, we are bound by the factual
determinations of the Board, and we may not disturb them unless the evidence
is undisputed and leads inescapably to a contrary conclusion. Christopher R.
Brown, D.D.S., Inc. v. Decatur Cty. Mem’l Hosp., 892 N.E.2d 642, 646 (Ind. 2008).
We examine the record only to determine whether substantial evidence and
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reasonable inferences support the Board’s findings and conclusions. Id. We
neither reweigh the evidence nor judge the credibility of the witnesses. Conway
ex rel. Conway v. Sch. City of E. Chicago, 734 N.E.2d 594, 597 (Ind. Ct. App.
2000), trans. denied. As to the Board’s interpretation of the law, we employ a
deferential standard of review to the interpretation of a statute by an
administrative agency charged with its enforcement in light of its expertise in
the given area. Christopher R. Brown, D.D.S., 892 N.E.2d at 646. We will
reverse the Board only if it incorrectly interpreted the Worker’s Compensation
Act. Id.
[10] Masterbrand argues that Waid is not entitled to TTD benefits because he was
terminated for misconduct. Masterbrand contends that the Act allows the
termination of TTD benefits when an employee is unable or unavailable to
work for reasons unrelated to the work injury. See Ind. Code § 22-3-3-7(c).
According to Masterbrand, Waid’s “loss of earning power resulted from his loss
of temper and his aggression” rather than his injury. Appellant’s Br. p. 15.
Masterbrand advocates that we adopt a two-part analysis to determine whether
an employee is entitled to TTD benefits after termination. Under
Masterbrand’s approach, “an employee is not entitled to TTD benefits when
terminated for cause, unless the work-related injury is the employee’s sole
inability to find or maintain employment.” Id. at 19. Alternatively,
Masterbrand argues that Waid was only entitled to TTD benefits for a portion
of the time period ordered by the Board.
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[11] The Defense Trial Counsel of Indiana filed an amicus curiae brief in support of
Masterbrand. Defense Trial Counsel advocated the following resolution:
Whether an employee quits their employment or is terminated is
irrelevant to the inquiry as to whether the employee is entitled to
benefits. The language of I.C. § 22-3-3-7(c) does not distinguish
between terminated employees and those who quit their
employment. Rather, the unambiguous language of the Act only
requires a finding of whether an employee is “unable or
unavailable to work for reasons other than the work injury” to
avoid payment of benefits. If an employee can show that he/she
is completely unable to work because of their work injury, even
after a justifiable termination, then the employee would be
entitled to recovery of benefits because the inability to work is
now directly related to the work injury. However, once the
employee is released to even sedentary work, like the employee
in Borgman [v. Sugar Creek Animal Hospital, 782 N.E.2d 993 (Ind.
Ct. App. 2002)], the employee is no longer entitled to benefits
because the inability to work is no longer related to the work
injury, rather it was caused by the employee’s resignation or
violation of company policies. To hold otherwise would tie an
employer’s hands and force them to retain misbehaving
employees only because they sustained a work injury which puts
all employees at a safety risk. See Calvert v. General Motors Corp.,
Buick Motor Division, 327 N.W.2d 542 (Mich. Ct. App. 1982)
(holding employee who brought concealed weapon to work was
terminated for cause therefore the employee was not entitled to
disability benefits). Further, it would force employers to treat
injured and non-injured workers differently exposing employers
to added litigation for its disparate treatment of employees.
Amicus Curiae Br. of Defense Trial Counsel of Indiana pp. 11-12.
[12] On the other hand, Waid argues that he was entitled to benefits pursuant to
Indiana Code Section 22-3-3-7(a) because he did not have the ability to return
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to work of the same kind or character. Waid contends that Masterbrand is
improperly disputing factual findings of the Board. He argues that the Board’s
factual findings are fully supported by the record and cannot be reversed on
appeal. Finally, he argues that the situation is adequately addressed by Indiana
statutes, and it is unnecessary to look to other states or create a new test.
[13] The Indiana Trial Lawyers Association filed an amicus curiae brief in support
of Waid. The Trial Lawyers Association contends that Masterbrand is
requesting this court to “re-weigh the evidence and adopt a two-part analysis
that has never been applied in the history of the Board or by an appellate court
in Indiana.” Amicus Curiae Br. of Indiana Trial Lawyers Association p. 5.
The Trial Lawyers Association notes that Masterbrand’s argument would set a
bad precedent because “potentially any time an employee disagrees with his
employer over temporary total disability . . . or any other issue surrounding his
workers compensation claim, the employer could terminate him claiming
employee insubordination,” and it would encourage employers to create
conflict “in an effort to find a reason to terminate an employee and avoid
paying wage benefits under the Act.” Id. at 7.
[14] This matter requires us to interpret the Indiana Worker’s Compensation Act.
The primary goal in statutory construction is to determine, give effect to, and
implement the intent of the legislature. State v. Dugan, 793 N.E.2d 1034, 1036
(Ind. 2003). The best evidence of legislative intent is the language of the statute
itself, and all words must be given their plain and ordinary meaning unless
otherwise indicated by the statute. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.
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2001). It is just as important to recognize what the statute does not say as it is
to recognize what it does say. Dugan, 793 N.E.2d at 1036.
[15] Indiana Code Section 22-3-2-2(a) requires that “[e]very employer and every
employee, except as stated in IC 22-3-2 through IC 22-3-6, shall comply with
the provisions of IC 22-3-2 through IC 22-3-6 respectively to pay and accept
compensation for personal injury or death by accident arising out of and in the
course of the employment, and shall be bound thereby.” Further, under
Indiana Code Section 22-3-3-7(a), “[c]ompensation shall be allowed on account
of injuries producing only temporary total disability to work or temporary
partial disability to work . . . .”
[16] “The purpose of awarding temporary total disability payments under the
Indiana Worker’s Compensation Act is to compensate an employee for a loss of
earning power because of an accidental injury arising out of, and in the course
of, his or her employment.” Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d
1233, 1239 (Ind. Ct. App. 2003). “If the injured worker does not have the
ability to return to work of the same kind or character during the treatment
period for the injury, the worker is temporarily totally disabled and may be
entitled to benefits.” Id. “Once the injury has reached a permanent and
quiescent state, however, the treatment period ends, and the extent of the
permanent injury is assessed for compensation purposes.” Id. “Thus, once the
injury has stabilized to a permanent and quiescent state, temporary disability
ceases, and the extent of permanent injury resulting in a degree of impairment
or total disability is determined.” Id.
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[17] Here, there is no dispute that Waid was injured in the course of his employment
at Masterbrand. However, Masterbrand argues that Waid was not entitled to
TTD benefits because he was terminated for misconduct. In support of its
argument, Masterbrand relies in part on Indiana Code Section 22-3-3-7(c),
which provides:
Once begun, temporary total disability benefits may not be
terminated by the employer unless:
(1) the employee has returned to any employment;
(2) the employee has died;
(3) the employee has refused to undergo a medical
examination under section 6 of this chapter or has
refused to accept suitable employment under section 11
of this chapter;
(4) the employee has received five hundred (500) weeks of
temporary total disability benefits or has been paid the
maximum compensation allowed under section 22 of
this chapter; or
(5) the employee is unable or unavailable to work for
reasons unrelated to the compensable injury.
According to Masterbrand, Waid’s termination was the reason for his inability
to work, not Waid’s injury. See Ind. Code § 22-3-3-7(c)(5). Waid properly
points out that this statute is not technically applicable to this case. The statute
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applies to the termination of TTD benefits. Waid’s appeal concerns his
entitlement to benefits, not the termination of benefits.
[18] The parties rely heavily on Borgman v. Sugar Creek Animal Hospital, 782 N.E.2d
993 (Ind. Ct. App. 2002), trans. denied, and E.F.P. Corp. v. Pendill, 413 N.E.2d
279 (Ind. Ct. App. 1980). In Borgman, the employee was injured during a fall at
work, and seven months later she voluntarily terminated her employment based
on personal difficulties with a co-worker. A month later, she sought treatment
for injuries that she claimed were related to her fall. The employee’s claim was
denied, and the Board found, in part, that the employee was entitled to TTD
benefits for only a six-week period beginning when she left her employment and
ending when a physician released her to return to sedentary work.
[19] On appeal, the employee argued that she was entitled to TTD benefits in
addition to the six-week period. We held that the evidence was sufficient to
support the employee’s TTD benefits for the six-week period. Notwithstanding
that determination, we also held:
Borgman asserts entitlement to temporary partial disability
benefits (TPD) because Sugar Creek did not offer her any work in
accordance with her ability to perform sedentary work.
Borgman, however, did not preserve the issue of her entitlement
for such benefits at the May 16, 2000 hearing. Also, because
Borgman voluntarily terminated her employment with Sugar
Creek due to reasons unrelated to her work injury, Sugar Creek
did not have a duty to offer her work according to medical
restrictions or to remit any TPD benefits to her. Thus, the Board
properly determined that Borgman was unavailable for work for
reasons that were not related to her work injury. Indiana Code
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section 22-3-3-7(c)(5), which provides that TTD benefits “may
not be terminated by the employer unless the employee is unable
or unavailable to work for reasons unrelated to the compensable
injury,” commands such a result in this instance. It is thus
apparent that the Board concluded that Borgman failed to meet
her burden of proof that she was entitled to disability benefits for
the full period of February 16, 1996, to November 24, 1997, and
that conclusion is supported by the evidence.
Borgman, 782 N.E.2d at 997. We affirmed the Board’s decision. Consequently,
pursuant to the Board’s decision, the employee received benefits for only the
six-week period.
[20] Masterbrand asserts that Borgman stands for the proposition that “an
employee’s voluntary resignation from employment, even though restricted
from full duty work as a result of the work injury, renders the employee unable
or unavailable to work for reasons unrelated to the work injury and, therefore
ineligible for receipt of TTD benefits.” Appellant’s Br. p. 14. We conclude that
Masterbrand is reading too much into Borgman. The employee in Borgman in
fact did receive benefits for six weeks after she terminated her employment, and
we affirmed that decision. The denial of her benefits related to the time period
after that initial six weeks. As a result, we cannot say that Borgman bars an
employee who has been voluntarily or involuntarily terminated from later
receiving TTD benefits.
[21] In E.F.P. Corp., the employee was injured during his employment and started
receiving TTD benefits. After being released by the doctor and returning to
work, the employee was fired “for reasons unrelated to his injury.” E.F.P.
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Corp., 413 N.E.2d at 280. Later, a neurologist determined that the employee
was unable to work due to the injury. The issue was whether the employee was
“entitled to receive benefits from the date when his injury recurred despite the
fact he was no longer employed by E.F.P.” Id. The Board granted TTD
benefits to the employee, and we affirmed. We “found no restrictive language
which limits recovery of total temporary disability payments to situations where
the injured employee remains with his original employer.” Id. We held that
the employer was ignoring “the fact that [the employee’s] continuing
unemployment is not due to his termination, but rather due to the injury he
sustained while in their employment.” Id. at 281.
[22] Even if Indiana Code Section 22-3-3-7(c) applied here, based on E.F.P., the
statute would not result in the denial of Waid’s benefits. The statute allows the
termination of benefits where the employee is unable or unavailable to work for
reasons unrelated to the injury. The statute does not require the work to be for
the same employer as when the employee was injured. Although Waid was
terminated from his employment at Masterbrand, the relevant inquiry is
whether his inability to work, even for other employers, was related to his
injury. The Board here found that Waid’s inability to work was related to his
injury. That decision rested on a determination of Waid’s credibility and
weighing of the evidence. On appeal, we cannot reweigh the evidence or judge
the credibility of the witnesses. Conway, 734 N.E.2d at 597.
[23] In fact, the worker’s compensation statutes do not directly address the situation
here. The General Assembly has shown that it is capable of limiting or barring
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an employee’s claim to worker’s compensation benefits. For example, Indiana
Code Section 22-3-2-8 provides:
No compensation is allowed for an injury or death due to the
employee’s knowingly self-inflicted injury, his intoxication, his
commission of an offense, his knowing failure to use a safety
appliance, his knowing failure to obey a reasonable written or
printed rule of the employer which has been posted in a
conspicuous position in the place of work, or his knowing failure
to perform any statutory duty.
Further, Indiana Code Section 22-3-3-11(a) provides: “If an injured employee,
only partially disabled, refuses employment suitable to his capacity procured for
him, he shall not be entitled to any compensation at any time during the
continuance of such refusal unless in the opinion of the worker’s compensation
board such refusal was justifiable.” The statutes, however, provide no direct
bar to the claim of an employee who has been terminated prior to the start of
TTD benefits. The statutes also provide no support for the new tests advocated
by Masterbrand and Amicus Curiae Defense Trial Counsel of Indiana. Further,
any doubts in the application of the worker’s compensation statutes must be
resolved in favor of the employee. Daugherty, 802 N.E.2d at 919. We conclude
that Waid’s termination for misconduct does not prevent him from receiving
TTD benefits as a result of his on-the-job injury.
[24] The basic question here is whether Waid had “the ability to return to work of
the same kind or character during the treatment period for the injury.” Cavazos,
783 N.E.2d at 1239. The Board found that Waid “[u]nquestionably” was
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unable to “perform work of the same kind or character” that he was performing
when injured. Appellant’s App. Vol. II p. 6. According to the Board, Waid
“has been so limited since the date of his injury and that limitation continued
through the date of hearing on this issue.” Id. Masterbrand argues that Waid
failed to present medical evidence that he was unable to work other than for the
period from July 1, 2014, to July 28, 2014, and August 25, 2015, until he
reaches maximum medical improvement. Waid testified that he had severe
pain in his back and pain shooting down his legs and that he had been
physically unable to work due to his back pain. The Board found Waid to be
credible. We have held that “lay evidence, such as a claimant’s own testimony,
is sufficient to support an initial award of temporary total disability payments.”
Tanglewood Trace v. Long, 715 N.E.2d 410, 414 (Ind. Ct. App. 1999), trans.
denied. Further, Dr. Chou diagnosed Waid with “bilateral L5 radiculopathy
secondary to protruding intervertebral disc at L4-5” that might require surgery.
Appellant’s App. Vol. II p. 52. Masterbrand’s argument is merely a request to
reweigh the evidence, which we cannot do. Conway, 734 N.E.2d at 597. We
conclude that the Board’s decision was supported by substantial evidence and
reasonable inferences support the Board’s findings and conclusions. Further,
we cannot say that the Board’s interpretation of the worker’s compensation
statutes is erroneous.
Conclusion
[25] The Board properly awarded TTD benefits to Waid despite his termination for
misconduct. We affirm.
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[26] Affirmed.
Kirsch, J., and Robb, J., concur.
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