Attorneys for Appellant Attorney for Appellee
Doris L. Sweetin Patrick F. O’Leary
Kevin C. Tyra Goshen, Indiana
Tyra & Collesano, P.C.
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 93S02-0401-EX-0008
Dial X-Automated
Equipment,
Appellant (Defendant below),
v.
Anthony Caskey,
Appellee (Plaintiff below).
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Appeal from the Full Worker’s Compensation Board of Indiana, No. C-150794
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 93A02-0209-
EX-751
_________________________________
May 4, 2005
Dickson, Justice.
The Indiana Worker's Compensation Board found that Plaintiff Anthony
Caskey, a machinist employed by defendant Dial-X Automated Equipment, was
entitled to benefits under the Indiana Worker's Compensation Act.
Appealing the decision of the Board, Dial-X alleged various errors
regarding the Board's determinations of compensability and temporary total
disability benefits. The Court of Appeals reversed in a memorandum
opinion, and we granted transfer.[1]
As a result of an alleged injury sustained while working for Dial-X on
May 24, 1999, Caskey was initially off work a week and a half. He returned
to work from June 7, 1999, to July 27, 1999, but has not worked for Dial-X
since, although he reported for work on April 3, 2000. In accordance with
the Act, Dial-X paid Caskey Temporary Total Disability (TTD) and medical
expense benefits to April 9, 2000. Due to the parties' disagreement
primarily regarding whether Caskey should receive further medical treatment
and TTD benefits from Dial-X, a hearing was held in May 2001 before a
single hearing member who issued findings and conclusions on July 17, 2001,
awarding Caskey continuing TTD benefits and expenses of additional medical
care. Dial-X sought review of the award by the Full Worker's Compensation
Board, which thereafter expressly adopted and affirmed the decision of the
single hearing member.
1. Full Board Adoption of Single Hearing Member Findings
Although not challenged on appeal by Dial-X, a majority of the Court
of Appeals panel opined that, by adopting without comment the decision of
the single hearing member, the decision of the full board was inconsistent
with Indiana Code § 22-3-4-7. This provision of the Indiana Worker's
Compensation Act states in relevant part that the full board "shall make
an award and file the same with the finding of the facts on which it is
based."[2] The Court of Appeals decision emphasized the need for written
findings of fact to enable intelligent appellate review, and asserted that
mere adoption of the single hearing member decision is not equivalent to
explicit adoption of its findings of fact and conclusions of law.
We believe that the distinction between "adopting the decision" and
"explicitly adopting the findings and conclusions" is overly formalistic
and unnecessary. It is of no consequence whether the full board makes
separate findings or adopts written findings made by the single hearing
member so long as the final decision of the full board may be reviewed in
light of the written findings on which the decision is based. Prior cases
have recognized that where a hearing officer's statements or findings are
supported by the evidence and embody the requisite specificity, the board
"should not hesitate to adopt and incorporate by reference the hearing
officer's work,"[3] and that, assuming the appropriate scrutiny occurred,
the board "is neither prohibited by statute from, nor judicially condemned
for, adopting the hearing judge's decision."[4] In this case, the single
hearing member made written findings and the full board found that the
hearing officer's decision "should be adopted."[5] Such adoption is
sufficient to attribute to the full board the explicit written findings of
the single hearing member and to permit appellate review accordingly.
2. Compensability
Dial-X contends that the Board abused its discretion in ruling that
Caskey's claimed injuries after July 27, 1999, are related to his May 24,
1999 accident and therefore compensable under the Act. Dial-X argues that
the medical records "reflect contradictory stories" and "material
discrepancies" regarding the severity and development of Caskey's
symptoms.[6]
The Board's findings note medical evidence that, based on an August
19, 1999 examination, "there was 'reasonable medical certainty of causal
relationship' between the Plaintiff's injuries and the events of May 24,
1999."[7] The findings also refer to evidence that on March 9, 2000, one
of the physicians recommended the use of a spinal cord stimulator for
Caskey and that this recommendation "was reiterated by various other
doctors who examined and/or reviewed records of the Plaintiff's history in
connection with the symptoms arising on May 24, 1999."[8]
In reviewing a Board decision, an appellate court considers "only the
evidence most favorable to the award, including any and all reasonable
inferences deductible from the proven facts."[9] Dial-X's claim of
inconsistent or contradictory evidence, because it impliedly concedes that
there is some evidence in support of the Board's findings, undermines its
claim of abuse of discretion. We find that the Board's conclusion of
compensability is supported by its findings, which are in turn supported by
the evidence. We decline to find error on this issue.
3. Temporary Total Disability
Dial-X argues that the Board erred in three ways with respect to the
award of Temporary Total Disability (TTD) benefits: (a) in finding Caskey
unable to work after February 8, 2000; (b) in ordering TTD benefits after
April 3, 2000; and (c) in allowing Caskey to receive TTD benefits after
June 20, 2000.
a. Finding Caskey Unable to Work After February 8, 2000
As to its claim of erroneous finding that Caskey was unable to work
after February 8, 2000, Dial-X argues that the doctor released Caskey to
light duty work effective that date, that the doctor's findings were
uncontroverted but ignored by the Board, that the doctor's later opinion of
continuing total disability is not based on any "medical information," and
that the Board's holding is clearly erroneous because it is contrary to the
undisputed evidence.[10] Central to this Dial-X claim are the following
passages from the "Conclusions and Award" section of the Board's decision:
2. On February 8, 2000, Dr. Shugart first opined Plaintiff could
work with a five to ten pound restriction and no repetitive bending
and twisting. He maintained this opinion up until April 6, 2000, when
he recommended the Plaintiff go on disability. Between February and
April, Plaintiff's symptoms had not significantly worsened, according
to the medical history and reports provided. The undersigned [Single
Hearing Member] thus concludes Plaintiff would have been unable to
work between February 8th and April 6, 2000.
3. Plaintiff's condition has not improved since April 6, 2000.
He remains temporarily, totally disabled to the date of hearing, and
is entitled to benefits in connection therewith. . . .
4. Further, Plaintiff is entitled to additional temporary total
disability benefits until he is found to be at maximum medical
improvement, or as otherwise released by his treating
physician . . . . [11]
We first note that the date of February 8, 2000, stated in the
"Conclusions and Award" section of the Board's decision as to when Dr.
Shugart "first opined Plaintiff could work," is slightly inconsistent with
the Board's own findings and with the evidence, reflecting a scrivener's
error. It was, rather, on March 9, 2000, that Dr. Robert M. Shugart, M.D.
saw Caskey and described his work status as "at this time, light duty, 5-10
lb. No repetitive bending or twisting."[12] Dial-X itself refers to this
evidence when identifying the point when "Dr. Shugart released Caskey back
to work with restrictions."[13] Likewise, earlier in its decision at
Finding 2, the Board's decision referred to Dr. Shugart's releasing Caskey
for limited work as occurring on March 9, 2000.[14]
Dial-X further asserts, however, that the Board improperly concluded
that Caskey "has not improved since April 6, 2000" and that he "remains
temporarily, totally disabled to the date of hearing, and is entitled to
benefits in connection therewith."[15] Dial-X urges that Dr. Shugart's
initial opinion releasing Caskey to limited work on February 8, 2000
(corrected to March 9, 2000), coupled with the absence of change noted by
Dr. Shugart between then and April 6, demonstrates the absence of support
for the Board's conclusion of ongoing total disability.
In its findings, the Board noted that on April 6, 2000, Dr. Shugart
"recommended disability for the Plaintiff, stating there was no work he
could perform in his current condition."[16] There is evidence in the
record that supports this finding. Dr. Shugart's medical entry on that
date states in relevant part:
Diagnosis: status post laminotomy discectomy left L4-5, herniated disk
11-29-99.
Present condition: Tony Returns. He still has the pain. David
Bojrab, M.D. felt that a stimulator was an option for him. There is
nothing else we can really do as far as his neuropathic pain.
Physical Examination: unchanged.
Medical Decision Making: I think Tony is at maximum medical
improvement; permanent partial impairment rating according to American
Medical Association Guidelines to the Evaluation of Permanent
Impairment, Fourth Edition would be lumbosacral category 3 with a 10%
whole person impairment rating.
My recommendation is for disability. He really cannot sit, stand,
lift, and has to do significant lying down during the day. Because of
that, I now feel that recommendation is for disability. . . . I do
feel that he is at maximum medical improvement.
[word obscured] status: Disability recommended since he is unable to
do even sedentary
work secondary to pain and inability to sit, stand, for any period of
time.[17]
We understand the Board's findings and conclusion to express its
determination that, although Dr. Shugart initially believed, on March 9,
2000, that Caskey could resume light, limited work, by the time of his
examination on April 6, Dr. Shugart revised his opinion in light of the
pervasive effects of the injury to conclude that Caskey was in fact totally
disabled, which opinion the Board found credible and accepted.
b. TTD benefits after April 3, 2000
Dial-X also challenges the Board decision ordering TTD benefits after
April 3, 2000, arguing that the Board ignored evidence that Dial-X offered
light duty work, consistent with the medical restrictions, on April 3,
2000. Workers Compensation benefits for Temporary Total Disability may be
terminated if the employee has refused to accept employment suitable to his
capacity.[18]
The Board's findings and conclusions make no reference to the alleged
offer of light duty work on April 3, 2000, and there is considerable,
although vigorously disputed, evidence regarding the events of that day.
Caskey concedes that the Board's decision "fails to address the issue of
whether Caskey refused available work and if so, whether that refusal was
justified," and he urges remand to the Board as the proper remedy.[19]
Adhering to our obligation to give reasonable deference to the
Board's findings, we understand the Board's omission of this issue to be
consistent with finding of Caskey's ongoing total disability, in accordance
with Dr. Shugart's opinion of April 6, 2000. Implicit in this finding of
total disability is the premise that, even if Dial-X did offer Caskey work
on April 3, his medical condition was one of total disability, and he could
not have performed such work. We thus conclude that the Board did not err
in failing to expressly discuss the factual dispute regarding the alleged
April 3 work offer.
c. TTD Benefits after June 20, 2000
Dial-X also contends that the Board erred in allowing Caskey to
receive TTD benefits after June 20, 2000, the date the hearing before the
single hearing member was continued for a third time on Caskey's motion.
Dial-X argues for the adoption of a new rule estopping a worker's
compensation plaintiff to continue to accrue ongoing TTD benefits while
obtaining repeated continuances of Board hearings where an employer opposes
payment of additional TTD on a good-faith basis.
Administration of the Indiana worker's compensation law is assigned
to the Worker's Compensation Board.[20] The Board is expressly authorized
"[t]o hear, determine, and review all claims for compensation" under the
Act.[21] Pursuant to its rulemaking authority,[22] the Board has adopted
631 IAC 1-1-10, which prohibits the granting of continuances except for
good cause.
Although requesting the adoption of a new estoppel rule, Dial-X is
not asserting error in the granting of the continuances in this case. We
decline to intrude upon the Board's authority to regulate its own
proceedings.
4. Conclusion
Having previously granted transfer, thereby vacating the memorandum
decision of the Court of Appeals, we now affirm the decision of the Full
Worker's Compensation Board. Because the award of the full board is
affirmed on the appeal of the employer, the award shall be increased by
five percent (5%) in accordance with Indiana Code § 22-3-4-8(f).
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] 812 N.E.2d 791 (Ind. 2004). As part of an ongoing experiment,
this opinion departs from the usual style of citation and footnote use.
Cf. Indiana Appellate Rule 22. Generally adhering to the footnote
recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004),
all citations unessential to the text are placed in footnotes, and
substantive matter that otherwise might appear in footnotes is included in
the text. This revised format does not meet with universal approval. See
Richard A. Posner, Against Footnotes, 38 Court Rev. 24 (Summer 2001). The
public, the bench, and the bar are invited to comment to the Supreme Court
Administrator, 315 State House, Indianapolis, IN 46204.
[2] Ind. Code § 22-3-4-7.
[3] Rork v. Szabo Foods, 436 N.E.2d 64, 67-68 (Ind. 1982)
[4] Wayman v. J & S Petroleum, Inc., 694 N.E.2d 767, 769 (Ind. Ct.
App. 1998).
[5] Appellant's App'x. at 4.
[6] Appellant's Brief at 16.
[7] Appellant's App'x. at 7.
[8] Id.
[9] Neidige v. Cracker Barrel, 719 N.E.2d 441, 443 (Ind. Ct. App.
1999) transfer not sought; K-Mart Corp. v. Morrison, 609 N.E.2d 17, 27
(Ind. Ct. App. 1993), trans. denied.
[10] Appellant's Brief at 12-13.
[11] Appellant's App'x. at 7-8.
[12] Id. at 69; Exhibits vol. II at 132.
[13] Appellant's Brief at 4.
[14] Appellant's App'x. at 7.
[15] Id. at 8.
[16] Id. at 7.
[17] Id. at 71; Exhibits Vol. II at 134.
[18] Ind. Code §§ 22-3-3-7(c)(3), 22-3-3-11.
[19] Appellee's Petition to Transfer at 10.
[20] Ind. Code § 22-3-1-2.
[21] Ind. Code § 22-3-1-3(b)(1).
[22] Ind. Code § 22-3-1-3(a).