Opinion
No. 93A02-1102-EX-204
08-10-2011
JAVIER SOTO, Appellant, v. MONACO COACH CORPORATION, Appellee.
ATTORNEY FOR APPELLANT : DOUGLAS A. MULVANEY Elkhart, Indiana ATTORNEYS FOR APPELLEE : KEVIN W. KEARNEY DINAH H. SAMPSON Hunt Suedhoff Kalamaros LLP South Bend, Indiana
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.
ATTORNEY FOR APPELLANT:
DOUGLAS A. MULVANEY
Elkhart, Indiana
ATTORNEYS FOR APPELLEE:
KEVIN W. KEARNEY
DINAH H. SAMPSON
Hunt Suedhoff Kalamaros LLP
South Bend, Indiana
APPEAL FROM THE FULL WORKER'S COMPENSATION BOARD OF INDIANA
The Honorable Linda P. Hamilton, Chairperson
Cause No. C-171450
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Javier Soto appeals from an order of the Full Worker's Compensation Board of Indiana (the "Board") denying his application for adjustment of claim. We revise and restate the issues presented on appeal as whether the Board erred in affirming certain determinations of the single hearing member. We reverse in part and remand.
The relevant facts follow. On February 24, 2003, Soto suffered an injury to his lower back while working for Monaco Coach Corporation ("Monaco"). Monaco provided statutory medical treatment to Soto from a variety of medical providers. On May 10, 2004, Dr. Thomas Keucher found Soto to be at maximum medical improvement. Dr. Keucher gave Soto certain permanent work restrictions. At Soto's request, Soto was sent to Dr. Jonathan Javors by the Board for an independent medical examination, and in his report Dr. Javors determined that Soto was not at maximum medical improvement and recommended additional medical treatment.
Dr. Keucher gave Soto "permanent work restrictions of 4 hours per day, being able to sit or stand as needed, no bending and no lifting less [sic] than 10 pounds." Appellant's Appendix Volume I at 13.
On September 23, 2004, Monaco filed an application for adjustment of claim requesting a determination of liability under the Indiana Worker's Compensation Act and to make disposition of its appeal of Dr. Javors's August 16, 2004 IME report. On September 27, 2004, Soto filed an application for adjustment of claim and alleged in part "bad faith on the part of [Monaco], due to the fact that [his] benefits were inappropriately discontinued." Appellant's Appendix Volume II at 20. Soto and Monaco filed a stipulation of facts, issues, and exhibits, which included among other items medical reports and notes from Soto's providers. In pertinent part, the stipulation of issues contained the following:
Monaco later filed an amendment to stipulate additional exhibits.
1. Is plaintiff at maximum medical improvement?
2. If plaintiff is at maximum medical improvement is he entitled to additional pain treatment as recommended by Dr. Thomas Keucher?
3. If plaintiff is not at maximum medical improvement is he entitled to additional medical treatment as recommended by Drs. Javors, Reecer and Schwartz?
4. Is plaintiff entitled to additional temporary total disability?
5. Is plaintiff entitled to mileage reimbursement? If so how much? Appellant's Appendix Volume I at 14. Paragraph 8 of the stipulation provided: "All other issues including TTD, permanent total disability, and bad faith/lack of diligence are are [sic] reserved for further hearing depending on the Board's determination of the above issues." Id. at 14-15. Soto also filed his proposed findings of fact, conclusions of law, and award.
On September 25, 2010, a single hearing member issued a decision which concluded in part that Soto "is not PTD as a result of his February 24, 2003 accident" and that Monaco "is not required to incur the cost of future medical treatment for [Soto's] lower back . . . ." Id. at 10-11. The single hearing member's decision included twenty-seven paragraphs under the heading "Findings of Fact and Conclusions of Law" and six paragraphs under the heading "Award." Id. at 8, 10. The single hearing member's decision provided in part:
PTD refers to permanent total disability.
Id. at 8-11. Soto sought review by the Board.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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6. That on May 10, 2004, Dr. Keucher determined that the Plaintiff's injury had reached maximum medical improvement (MMI) and assessed a permanent partial impairment (PPI) rating of 5% of the person to it.
7. That on May 10, 2004, Dr. Keucher also placed permanent restrictions upon the Plaintiff of lifting no more than 10 pounds and working for no more than four hours per day.
8. That Plaintiff disputed the fact that his injury had reached MMI and he petitioned the Indiana Worker's Compensation Board for an independent medical examination (IME).
9. That on August 16, 2004, Plaintiff underwent an IME with Jonathan R. Javors, D.O.
10. That on or about September 23, 2004, Defendant filed an Application for Adjustment of Claim seeking the jurisdiction of the Indiana Worker's Compensation Board.
11. That on October 26, 2004, Defendant had the Plaintiff examined by Mark V. Reecer, M.D.
12. That in Plaintiff's answers to interrogatory questions, he denied that he was employed after leaving his employment with Defendant.
13. That in Plaintiff's deposition, he denied that he was employed at Amerimax under an assumed name in 2004.
14. That on the Errata Sheet adjacent to the deposition transcript, dated February 15, 2008, Plaintiff recanted his former statement by admitting that he was employed by using someone else's name.
15. That on the Errata Sheet adjacent to the deposition transcript, dated February 15, 2008, Plaintiff also stated that he obtained employment using someone else's name because no one would hire him due to the permanent medical restrictions set forth by Dr. Keucher on May 10, 2004.
16. That Plaintiff knowingly concealed his permanent work restrictions, knowingly obtained employment under an assumed name, and knowingly worked outside his permanent restrictions.
17. That Plaintiff testified that he was out of work for more than one year after leaving his employment with Defendant.
18. That Plaintiff admitted that he has been continuously employed since November 14, 2005, to the present.
19. That, based upon the Plaintiff's testimony and Errata Sheet, he has been continuously employed since October 4, 2004.
20. That in none of the medical records or reports, following Dr. Keucher's determination that Plaintiff had reached MMI, did the Plaintiff inform any of the health care providers that he was employed in a job outside the permanent medical restrictions assigned by Dr. Keucher.
21. That following his work-related accident of February 24, 2003, Plaintiff attempted to obtain unemployment benefits, but was denied same, demonstrating his ability to work.
22. That Plaintiff has failed to present credible evidence to support his claim that he is entitled to receive any TTD benefits after May 10, 2004.
23. That, based upon the medical evidence presented to the Board, Plaintiff's injury was deemed to have reached MMI on May 10, 2004.
24. That Plaintiff did not cooperate and/or comply with the medical and permanent restrictions that were recommended and placed upon him by Dr. Keucher, and which were knowingly ignored and violated by the Plaintiff while seeking and during subsequent employment. As such, Defendant is not required to incur the cost of the Plaintiff's medical expenses and out-of-pocket medical expenses after May 10, 2004.
25. That since Plaintiff knowingly disregarded the medical restrictions set forth by Dr. Keucher, and Plaintiff continued to work outside these permanent restrictions contrary to IC 22-3-3-4, Defendant is not responsible to incur the cost of any medical expense that the Plaintiff may incur in the future.
26. That Plaintiff is entitled to receive PPI benefits, based upon the 5% PPI rating set forth in Dr. Keucher's May 10, 2004 medical report.
27. That, based upon the evidence as a whole, Plaintiff is not PTD as a result of his February 24, 2003 accident while working for the Defendant.
AWARD
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1. That Plaintiff is entitled to PPI benefits, based on the 5% PPI rating assessed by Dr. Keucher in his May 10, 2004 medical report.
2. That Plaintiff is not entitled to receive TTD benefits after May 10, 2004, as the Plaintiff sought, obtained, and maintained gainful employment under his own name and through the name of another, and was continuously employed following his determination of MMI to the present.
3. That Defendant must incur the cost for the authorized medical treatment provided to the Plaintiff from February 24, 2003 through May 10, 2004, as well as incur the cost for the Board-ordered IME.
4. That Defendant reimburse the Plaintiff for mileage incurred to attend authorized medical appointments, pursuant to IC 22-3-3-4 and IC 22-3-3-6.
5. That Defendant reimburse Plaintiff for out-of-pocket medical expenses which are supported by receipts for medical treatment with authorized medical care providers between February 24, 2003 and May 10, 2004.
6. That Defendant is not required to incur the cost of future medical treatment for the Plaintiff's lower back, as the Plaintiff was deemed not to have cooperated with the recommended medical treatment, that the Plaintiff willfully ignored recommended permanent restrictions, that the Plaintiff was not a credible witness or medical historian in failing to advise that he continued to work while attempting to obtain additional medical treatment and worker's compensation benefits.
After a hearing, the Board entered an order on January 12, 2011 affirming the determination of the single hearing member. The Board's decision provides in part: "It is further found that the [Board] by the majority of its members concurs and adopts the Single Hearing Member's decision with the modification of vacating Findings #24 and #25." Appellant's Appendix Volume I at 6.
The issue is whether the Board erred in affirming certain determinations of the single hearing member. The Board, as the trier of fact, has a duty to issue findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision. Perkins v. Jayco, 905 N.E.2d 1085, 1088 (Ind. Ct. App. 2009) (citing Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008), trans. denied). In evaluating the Board's decision, we employ a two-tiered standard of review. Id. First, we review the record to determine if there is any competent evidence of probative value to support the Board's findings. Id. We then assess whether the findings are sufficient to support the decision. Id. We will not reweigh the evidence or assess witness credibility. Id. We will construe the Worker's Compensation Act liberally in favor of the employee. Cavazos v. Midwest General Metals Corp., 783 N.E.2d 1233, 1239 (Ind. Ct. App. 2003).
Soto argues that the decision of the Board lacked adequate factual findings. Specifically, Soto argues that "the analysis for why the Hearing Member denied further medical treatment to Soto was contained just in Finding Nos. 24 and 25" and that the Board "while upholding the Hearing Member's decision modified his decision by vacating Finding Nos. 24 and 25." Appellant's Brief at 18. Soto further argues that "[w]hile in Finding No. 23, the Hearing Member concluded that 'based on the medical evidence presented to the Board, Plaintiff's injury was deemed to have reached [maximum medical improvement] on May 10, 2004,['] he did not appear to base his denial of further medical [treatment] on that finding." Id. Soto contends that the Board "made no new findings nor did they add additional explanation as to the basis for their decision denying further medical treatment," that the Board "removed the two findings that formed the basis for the Hearing Member's decision denying further medical treatment," and that "[f]or that reason, the decision of the Board should be reversed and the case remanded to the Board for further findings." Id. at 18-19. Soto also argues that the undisputed evidence showed that he was in need of medical treatment, that even if he was at maximum medical improvement he could receive additional medical treatment, and that the Board erred when it decided the issue of whether he should be considered permanently and totally disabled because that issue was not submitted for decision.
Monaco argues that, "[a]lthough the Full Board vacated two of the Single Hearing Member's findings of fact and conclusions of law, it adopted the remaining 25 findings and conclusions" and that the remaining findings "are sufficient to support its decision that Soto was not permanently totally disabled and was not entitled to further medical treatment." Appellee's Brief at 11. In support of its argument, Monaco points to a number of the single hearing member decision's findings, including paragraphs 15 and 16, and argues that the single hearing member found that Soto "concealed his permanent work restrictions and worked outside of such restrictions." Id. at 12. Monaco further argues that the issue of whether Soto was permanently and totally disabled was ripe for determination by the Board.
In his reply brief, Soto argues that there was no evidence "that Soto's working outside of his restrictions in any way aggravated or caused his medical condition to get worse," that he "in any way failed to cooperate with his recommended treatment," that "[a] permanent restriction is not a medical treatment" but rather "a recommendation by the treating physician that Soto not engage in activities of the restriction," and that "Soto was candid with his treating physicians and told them that he was working beyond his restrictions because he had to." Id. at 9. Soto further argues that "Monaco's argument if accepted would essentially deny worker's compensation benefits to any employee who ever worked outside of their restrictions." Id. at 10. Soto also asserts that the issue of permanent total disability was reserved for further hearing, that neither party submitted any statements regarding total disability, and that "[i]t is clear from the manner in which this was submitted that permanent total disability was not an issue to be decided by the Board and it was in error for the Board to make a finding on that issue at that time." Id. at 11.
As stated, paragraph 6 under the heading "Award" of the single hearing member's September 25, 2010 decision ordered:
That Defendant is not required to incur the cost of future medical treatment for the Plaintiff's lower back, as the Plaintiff was deemed not to have cooperated with the recommended medical treatment, that the Plaintiff willfully ignored recommended permanent restrictions, that the Plaintiff was not a credible witness or medical historian in failing to advise that he continued to work while attempting to obtain additional medical treatment and worker's compensation benefits.Appellant's Appendix Volume I at 11.
Paragraphs 24 and 25 under the heading of "Findings of Fact and Conclusions of Law" of the single hearing member's decision supported this determination. In paragraph 24, the hearing member found that Soto "failed to cooperate and/or comply with the medical and permanent restrictions that were recommended and placed upon him by Dr. Keucher, and which were knowingly ignored and violated by [Soto] while seeking and during subsequent employment" and that "[a]s such, [Monaco] is not required to incur the cost of [Soto's] medical expenses and out-of-pocket medical expenses after May 10, 2004." Id. at 10. In paragraph 25, the hearing member found that "[s]ince [Soto] knowingly disregarded the medical restrictions set forth by Dr. Keucher, and [Soto] continued to work outside these permanent restrictions contrary to IC 22-3-3-4, [Monaco] is not responsible to incur the cost of any medical expense that [Soto] may incur in the future."Id. However, in its January 12, 2011 determination, the Board specifically vacated the findings in paragraphs 24 and 25 of the hearing member's decision.
Indiana Code § 22-3-3-4 provides in pertinent part:
(a) After an injury and prior to an adjudication of permanent impairment, the employer shall furnish or cause to be furnished, free of charge to the employee, an attending physician for the treatment of the employee's injuries, and in addition thereto such surgical, hospital and nursing services and supplies as the attending physician or the worker's compensation board may deem necessary. If the employee is requested or required by the employer to submit to treatment outside the county of employment, the employer shall also pay the reasonable expense of travel, food, and lodging necessary during the travel, but not to exceed the amount paid at the time of the travel by the state to its employees under the state travel policies and procedures established by the department of administration and approved by the state budget agency. If the treatment or travel to or from the place of treatment causes a loss of working time to the employee, the employer shall reimburse the employee for the loss of wages using the basis of the employee's average daily wage.
(b) During the period of temporary total disability resulting from the injury, the employer shall furnish the physician services, and supplies, and the worker's
compensation board may, on proper application of either party, require that treatment by the physician and services and supplies be furnished by or on behalf of the employer as the worker's compensation board may deem reasonably necessary.
(c) After an employee's injury has been adjudicated by agreement or award on the basis of permanent partial impairment and within the statutory period for review in such case as provided in section 27 of this chapter, the employer may continue to furnish a physician or surgeon and other medical services and supplies, and the worker's compensation board may within the statutory period for review as provided in section 27 of this chapter, on a proper application of either party, require that treatment by that physician and other medical services and supplies be furnished by and on behalf of the employer as the worker's compensation board may deem necessary to limit or reduce the amount and extent of the employee's impairment. The refusal of the employee to accept such services and supplies, when provided by or on behalf of the employer, shall bar the employee from all compensation otherwise payable during the period of the refusal, and the employee's right to prosecute any proceeding under IC 22-3-2 through IC 22-3-6 shall be suspended and abated until the employee's refusal ceases. The employee must be served with a notice setting forth the consequences of the refusal under this section. The notice must be in a form prescribed by the worker's compensation board. No compensation for permanent total impairment, permanent partial impairment, permanent disfigurement, or death shall be paid or payable for that part or portion of the impairment, disfigurement, or death which is the result of the failure of the employee to accept the treatment, services, and supplies required under this section. However, an employer may at any time permit an employee to have treatment for the employee's injuries by spiritual means or prayer in lieu of the physician or surgeon and other medical services and supplies required under this section.
To the extent that Monaco argues that other findings support the award regarding future medical treatment, including paragraph 16 which provided in part that Soto "knowingly worked outside his permanent restrictions," we observe that the Board expressly vacated the specific finding that any violation of the work restrictions was contrary to Ind. Code § 22-3-3-4. While the other findings recited in part Soto's work history, none of those findings provides that Soto's working outside his restrictions was contrary to Ind. Code § 22-3-3-4.
Given the Board's express vacation of paragraphs 24 and 25 of the single hearing member's decision, we reverse and remand to the Board for findings and judgment based upon the evidence. See Van-Scyoc v. Mid-State Paving, 787 N.E.2d 499, 508 (Ind. Ct. App. 2003) (noting deficiencies in the Board's findings and holding that due to the deficiencies this court was unable to conduct meaningful appellate review); see also Perkins, 905 N.E.2d at 1090 (remanding to the Board with instructions to enter findings and conclusions where the Board had found that the claimant was at maximum medical improvement and the claimant had presented argument and evidence that there was a need for palliative care and noting that the Board has a duty to issue findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision).
In addition, we agree with Soto that the parties reserved the issue of Soto's permanent total disability. Paragraph 8 of the issues section of the parties' stipulation provided: "All other issues including TTD, permanent total disability, and bad faith/lack of diligence are [] reserved for further hearing depending on the Board's determination of the above issues." Appellant's Appendix Volume I at 14-15. We do not read the phrase "depending on the Board's determination of the above issues" in paragraph 8 to mean that it was proper for the Board to enter findings or judgment on the issue of Soto's permanent total disability. Based upon the stipulated issues and the Board's findings, we find that paragraph 27 of the findings in the single hearing member's decision and any portion of the award related to that finding/determination, as adopted by the Board's decision, must be reversed. See Havlin v. Wabash Intern., 787 N.E.2d 379, 382-383 (Ind. Ct. App. 2003) (noting that the parties reserved the issue of whether the claimant was entitled to a PPI rating and thus the Board's finding on that issue must be reversed). We remand to the Board with instructions to vacate paragraph 27 of the hearing member's decision, as adopted by the Board, and any other portions of the decision related to the issue of Soto's permanent and total disability and permit the parties to present evidence and argument on this issue at a further hearing.
The phrase "maximum medical improvement," also designated "quiescence" in the jargon of worker's compensation, essentially means that a worker has achieved the fullest reasonably expected recovery with respect to a work related injury. Perkins, 905 N.E.2d at 1088-1089 (citing Cox v. Worker's Comp. Bd., 675 N.E.2d 1053, 1054 (Ind. 1996)). Once a worker's 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 pursuant to the schedules in Ind. Code § 22-3-3-10. Paragraph 1 of the stipulated issues stated: "Is plaintiff at maximum medical improvement?" Appellant's Appendix Volume I at 14. Per the reservation in paragraph 8 of the stipulated issues, had the Board decided that Soto was not at maximum medical improvement, then the issue of his permanent and total disability would not be set for further hearing at that point. However, if the Board decided that Soto was at maximum medical improvement, as it did here, then the issue of Soto's permanent total disability would be set for hearing. This interpretation of paragraph 8 of the stipulated issues is consistent with Soto's proposed findings of fact and conclusions of law award, which provided in part:
The Board further reserves the hearing [on] the issue of whether [Soto] is permanently totally disabled until such time that [Soto] has been further evaluated by [Monaco's] authorized treating physician. Once it has been determined that [Soto] is at maximum medical improvement, the Board will set the issue of permanent total disability for hearing.Appellant's Supplemental Appendix at 123.
We need not address Soto's argument that the Board's findings related to permanent and total disability are insufficient to permit intelligent review because we reverse the Board's determinations related to Soto's permanent total disability on other grounds.
For the foregoing reasons, the judgment of the Board is reversed in part and remanded with instructions consistent with this opinion.
Reversed in part and remanded. FRIEDLANDER, J., and BAILEY, J., concur.