Young v. Marling

900 N.E.2d 30

Robert L. YOUNG, d/b/a Bob Young Logging, Appellant-Defendant, v. Glen MARLING, Appellee-Plaintiff.

No. 93A02-0805-EX-457.

Court of Appeals of Indiana.

January 27, 2009.

Ty M. Craver, Rori L. Goldman, Hill Fulwider McDowell Funk & Matthews, Indianapolis, IN, Attorneys for Appellant.

John H. Shean, Shean Law Offices, Bloomington, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Robert Young, doing business as Bob Young Logging ("BYL"), appeals from a decision of the full Worker's Compensation Board ("the Board") affirming the single hearing officer's decision that Glen Marling is entitled to reimbursement for certain medical treatments he received after an injury arising out of and in the course of his employment with BYL. Specifically, BYL argues that the Board's decision is erroneous because Marling is not entitled to reimbursement under the Indiana Worker's Compensation Act (the Act) because the treatments were unauthorized and the findings of fact and conclusions of law are insufficient to support the conclusion that Marling is entitled to reimbursement for these treatments. Because we find that the medical treatments were authorized by a physician chosen by BYL's insurance carrier and that the Board's findings of fact and conclusions of law are sufficient to support the award, we affirm.

Facts and Procedural History

On April 12, 2004, while working at the Victor Oolitic Stone Company near Bloomington, Indiana, Marling fell from a log skidder that he was operating and injured his back, hips, wrists, legs, and shoulders. Marling was an employee of BYL, and he had worked for BYL as a logger for over twenty-five years. BYL's worker's compensation insurance carrier, American Interstate Insurance Company ("the Insurer"), began paying temporary total disability (TTD) payments to Marling. The Insurer directed Marling to seek treatment with a number of healthcare providers, including Dr. Kam Tiwari of the Pain Management Center of Southern Indiana. Tr. p. 16.

Marling began seeing Dr. Tiwari for treatment in February 2005. Marling's treatment took the form of medications, a TENS unit, examinations, injections, radiofrequency ablations, and physical therapy. By July 2005, Dr. Tiwari placed Marling at maximum medical improvement (MMI). On August 28, 2005, Dr. Tiwari issued a permanent partial impairment (PPI) rating of 19%. In September 2005, the Insurer stopped paying TTD benefits and issued State Form 38911 for the termination of TTD benefits because of Dr. Tiwari's MMI finding. Marling requested an Independent Medical Examination via State Form 38911.

The Insurer contacted Dr. Tiwari in October 2005 and informed him that only medication, and no other type of therapy, should be prescribed for Marling. Id. at 207. However, Marling continued to visit Dr. Tiwari every six to eight weeks, and Dr. Tiwari continued to treat Marling for his chronic pain using the same combination of treatments as before.

On October 25, 2005, Marling met with Dr. David Steiman, who had been appointed by the Board to conduct the independent medical examination. Dr. Steiman agreed with Dr. Tiwari that Marling was at MMI and further found that Marling was not a surgical candidate and would not benefit from additional treatment. Marling then filed an application for an adjustment of claim with the Board.

In June 2006, Dr. Tiwari issued a report that Marling could not return to work in his present condition. Marling then retained a vocational specialist, Constance Brown, who determined that Marling was permanently and totally disabled. In October 2006, Dr. Tiwari stopped treatment for Marling but then revised his previous finding and determined that, although Marling's condition was stable, he was not at MMI. Soon thereafter, the Insurer arranged for Marling to be evaluated by Dr. John McLimore, who found Marling at MMI and issued a PPI rating of 5%. Dr. McLimore recommended a functional capacity evaluation, which was performed in January 2007. The next month, Marling retained Dr. Daniel Brown for an examination, and Dr. Brown found Marling at MMI and issued a 30% PPI rating.

On April 2, 2007, a hearing was held by a single hearing member of the Board in which the parties stipulated certain facts and presented argument and evidence. The issues as stipulated by the parties were as follows:

1. Whether Mr. Marling is entitled to permanent total disability benefits as defined under the Indiana Worker's Compensation Act.

2. If Mr. Marling is not entitled to permanent total disability benefits under the Indiana Worker's Compensation Act; what level of impairment (PPI rating) is Mr. Marling entitled to for injuries sustained arising out of and in the course [of] his employment on April 12, 2004.

3. Whether [BYL] is responsible for medical bills incurred at the Pain Management Center of Southern Indiana after August 28, 2005.

4. Whether [BYL] is responsible for any of [Marling's] ongoing medical care and prescription medication.

Appellant's App. p. 18.

On August 9, 2007, the single hearing member issued an order, which included the following pertinent findings of facts and conclusions thereon:

6. On August 28, 2005[,] when Dr. Tiwari found [Marling] to be at [MMI] and assigned a 19% [PPI] he opined that [Marling's] intractable pain would continue and that he would have periodic exacerbations.

7. Dr. Tiwari also noted that [Marling] was depressed, unable to sleep, and able to do activities of daily living only with substantial modifications. [Marling] continues to treat with Dr. Tiwari.

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12. [Marling] credibly testified that he continues to suffer from chronic pain, spasms, and occasional numbness. He takes pain medication and medication for his depression on a daily basis.

13. On June 22, 2006, Dr. Tiwari completed a "Physical Capacities Evaluation" in which he stated that [Marling] could not return to work in his present condition and that he would require continued pain management. Dr. Tiwari placed restrictions on lifting, bending, hyper extending and lateral movements and allowed [Marling] to travel less than one hour and to sit, stand, and walk for less than one hour in an eight hour work day.

14. The only vocational report in the record was done by Constance Brown. Her initial report July 20, 2006 concluded that [Marling] was totally and permanently disabled due to [Marling's] education, 11th grade education, narcotic pain medication use and his restrictions. . . .

CONCLUSIONS OF LAW

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3. [Marling] is entitled to ongoing medical care as well as reimbursement or payment for the care incurred after he was found to be at [MMI] on August 28, 2005[,] through the present.

Id. at 9-11. The single hearing member then found that Marling was permanently and totally disabled and awarded Marling maximum compensation and benefits, including ongoing medical treatment for his chronic pain. Id. at 11. BYL appealed the single hearing member's determination to the full Board, who affirmed the single hearing member's decision and award in its entirety without change. BYL now appeals.

Discussion and Decision

On appeal, BYL argues that the Board's decision is erroneous because Marling is not entitled to reimbursement as a matter of law because the treatments were unauthorized and the findings of fact and conclusions of law are insufficient to support the conclusion that Marling is entitled to reimbursement for these treatments.¹ We disagree.

"On appeal, we review the decision of the Board, not to reweigh the evidence or judge the credibility of witnesses, but only to determine whether substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board's findings and conclusions." Bertoch v. NBD Corp., 813 N.E.2d 1159, 1160 (Ind.2004) (quotation omitted). As to the Board's interpretation of the law, an appellate court employs 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 a given area. Christopher R. Brown, D.D.S., Inc. v. Decatur County Mem'l Hosp., 892 N.E.2d 642, 646 (Ind. 2008). The Board will only be reversed if it incorrectly interpreted the Act. Id. However, the Act must be liberally construed to effectuate its humane purposes, and doubts in the application of its terms are to be resolved in favor of the employee. Id. at 649.

We employ a two-tiered standard of review in evaluating the Board's decision. Wholesalers, Inc. v. Hobson, 874 N.E.2d 622, 627 (Ind.Ct.App.2007). We first review the record to determine if there is any competent evidence of probative value to support the Board's findings. Next, we examine the findings to see if they are sufficient to support the decision. Id. Here, the single hearing member entered written findings, and the Board found that the hearing officer's decision should be adopted. "Such adoption is sufficient to attribute to the . . . [B]oard the explicit written findings of the single hearing member and to permit appellate review accordingly." Dial X-Automated Equip. v. Caskey, 826 N.E.2d 642, 644 (Ind.2005). Therefore, we examine the evidence recited in the single hearing member's decision as well as the findings and conclusions set out therein, as these constitute the Board's decision.

The Act provides compensation for personal injury or death by accident arising out of and in the course of employment. Ind.Code § 22-3-2-2. Indiana Code § 22-3-3-4 governs the payment of medical services and treatments after an accident and provides in 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 his injuries, and in addition thereto such surgical, hospital and nursing services and supplies as the attending physician or the worker's compensation board may...