Gina Senter v. Foremost Fabricators ( 2019 )

FILED
Dec 12 2019, 10:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Kevin L. Likes Peter J. Bagiackas
Auburn, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gina Senter, December 12, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-EX-1064
v. Appeal from the Worker’s
Compensation Board of Indiana
Foremost Fabricators, The Honorable Linda Peterson,
Appellee-Defendant. Hamilton Chairman of Worker’s
Compensation Board of Indiana
Application No.
C-232196
Tavitas, Judge.
Case Summary
[1] Gina Senter appeals the Indiana Worker’s Compensation Board’s (the “Board”)
order, which granted Senter permanent partial impairment benefits totaling
$12,880.00. We reverse and remand.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 1 of 13
Issue
[2] The single issue on appeal is whether the Board erred in calculating Senter’s
award pursuant to Indiana Code Section 22-3-3-10 (the “Statute”) after finding
Senter required surgery to amputate her left small finger and the outside portion
of her hand due to a workplace injury.
Facts
[3] On April 29, 2014, Senter sustained an injury while working at her place of
employment, Foremost Fabricators, LLC (“Foremost”). Senter’s “left little
finger (i.e. 5th digit on the left hand) got caught between two rollers on a roller
machine.” Appellant’s App. Vol. II p. 15. The same day, Foremost selected
Dr. David Cutcliffe to evaluate and treat Senter. After evaluating Senter, Dr.
Cutcliffe “recommended a fingertip amputation to restore finger function to the
left little finger.” Id. at 16. Dr. Cutcliffe performed surgery the same day and
amputated the top portion of Senter’s finger.
[4] Dr. Cutcliffe again evaluated Senter on May 20, 2014, and found that, although
Senter’s incision was “clean and dry, [with] no evidence of infection,” Senter
“may still need a revision amputation due to the poor vascularity of the small
finger.” Id. A week later, on May 27, 2014, at a follow-up appointment, Dr.
Cutcliffe found that the “remaining end” on Senter’s left little finger needed a
revision amputation. Dr. Cutcliffe “further opined that he would consider a ray
amputation if the PIP joint of the small finger [could not] be preserved.” Id. at
17 (internal quotations omitted).
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 2 of 13
[5] On May 30, 2014, Senter returned for the revision amputation, and Dr.
Cutcliffe performed a “revision amputation small left finger with ray
amputation.” 1 Id. On September 23, 2014, at a follow-up office visit, Dr.
Cutcliffe found that Senter “had achieved Maximum Medical Improvement
with respect to her revision amputation little finger, ray amputation” and
completed a “dismemberment chart.” Id. Dr. Cutcliffe’s “impairment
assessment” also states that: “Patient has a 100% permanent partial impairment
of the left little finger which converts to 10% of the hand. . . .” Id. at 31.
[6] After the April 29, 2014 accident, the parties disagreed regarding the
“percentage of permanent partial impairment” Senter sustained on her hand,
“and accordingly, what amount of Permanent Partial Impairment benefits”
Senter was entitled to receive from Foremost as a result of her injuries. Id.
Importantly, Senter argued that a “ray amputation included the removal of the
bone along the left side of the left hand clear to the wrist joint.” Id. at 20.
Therefore, according to Senter, she was entitled to an award for one-third loss
of her hand.
[7] On November 3, 2015, Senter filed her application for adjustment of claim
before the single hearing member of the Board (the “SHM”). Senter sought an
award of $65,400.00 as a result of her injuries. On September 25, 2018, the
1
Appellant, in her brief, defines a ray amputation as “the complete amputation of the little finger, the bone
along the outside of the hand and fatty portion of the outside of the hand.” Appellant’s Br. p. 6.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 3 of 13
SHM issued his order. The SHM found that Senter was entitled to an award of
$12,880.00. The SHM reached this conclusion as follows:
7. [ ] The pre-operative and post-operative diagnoses were:
“amputation of left small finger.” The operative procedure
performed was: “Revision amputation left small finger with ray
amputation.”
8. On September 23, 2014, Dr. Cutcliffe evaluated Plaintiff at an
office visit. On that occasion, Dr. Cutcliffe opined that plaintiff
had achieved Maximum Medical Improvement with respect to
her revision amputation little finger, ray amputation. On that
occasion, Dr. Cutcliffe completed a “Dismemberment Chart”
evidencing the precise location of the amputation that took
place in the ray procedure.
*****
11. As a consequence of the ray procedure to Plaintiff’s left hand
performed on May 30, 2014 by Dr. Cutcliffe, Plaintiff sustained
permanent partial impairment of thirteen (13) percent to the left
hand [thirteen percent impairment was proposed by Foremost in
a filing]. [Pursuant to Indiana Code Section 22-3-3-10(i)(1), the
separation “of the hand by separation below the elbow joint,
[equals] forty (40) degrees of permanent impairment.”] Thirteen
percent permanent partial impairment of the hand equals 5.2
degrees of the hand (40 degrees x .13), and given Plaintiff’s date
of accident, that equals $7,280 worth of permanent partial
impairment benefits (5.2 degrees x $1,400 per degree).
12. Given Plaintiff’s date of accident, the doubling provision for
loss of the left little finger related to permanent partial
impairment benefits applies to Plaintiff’s injury sustained in the
Work-Related Accident of April 29, 2014. The permanent partial
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 4 of 13
impairment rating sustained by Plaintiff to her left hand as a
consequence of the ray procedure includes impairment for the
amputation of the left little finger. Accordingly, in light of the
doubling provision, an additional four (4) degrees needs to be
added to Plaintiff’s permanent partial impairment benefits for
loss of the left little finger by amputation. Given Plaintiff’s date
of accident, four degrees equals $5,600 worth of permanent
partial impairment benefits (4 degrees x $1,400 per degree).
Id. at 13 (emphasis supplied).
[8] As to the SHM’s doubling calculation, pursuant to Indiana Code Section 22-3-
3-10(i)(2), “For the loss by separation of any of the body parts described” in
subsections (1), (3), (5), or (8) of the statute, which would include the
amputation of Senter’s finger, “the dollar values per degree applying on this
date of the injury as described in subsection (j) shall be multiplied by two (2)”
(the “doubling provision”). This doubling provision, however, “does not apply
to a loss of use that is not a loss by separation.” Id. Moreover, Indiana Code
Section 22-3-3-10(i)(1) states that an injured employee is entitled to “four (4)
degrees of permanent impairment” for the little finger. Based on the SHM’s
findings, it appears that the SHM awarded Senter for thirteen percent loss of her
hand plus an additional four degrees of permanent impairment to double the
loss of Senter’s finger in order to satisfy the doubling provision for loss of
Senter’s finger.
[9] The SHM found thirteen percent impairment resulted from Senter’s
amputation. The SHM also did not apply the doubling provision to the portion
of Senter’s hand amputation, and instead only applied the doubling provision to
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 5 of 13
Senter’s finger amputation. It appears, instead, the SHM only accounted for
Senter’s hand amputation as “loss of use” and not “loss by separation.” See
Ind. Code § 22-3-3-10(i)(2) (“[T]he doubling provision of this subdivision does
not apply to a loss of use that is not a loss by separation.”); see also I.C. § 22-3-3-
10(i)(9).
[10] On October 17, 2018, Senter filed her application for review by the Board. On
April 15, 2019, the Board issued its opinion. The Board affirmed the SHM’s
$12,800.00 award, with five members of the Board voting to affirm and two
members of the Board dissenting. The Board’s order found as follows:
1. The only physician’s report assessing a [permanent partial
impairment] rating was done by Dr. David Cutcliffe,
Plaintiff’s surgeon. He found a 100% impairment of the little
finger; a 10% permanent partial impairment rating of the hand
for the loss by separation of the plaintiff’s little finger, but no
impairment for the cubital tunnel syndrome.
2. Dr. Cutcliffe stated he applied the AMA Guidelines to the
Evaluation of Permanent Partial Impairment, 6th Edition.
3. Defendant, in a filing, proposed a 13% impairment of the
hand.
4. Table 15-28 of the 6th edition of the AMA Guidelines gives a
13% impairment of the hand for an amputation at the
metacarpal at CMC level.
5. As per the Dismemberment Chart completed by Dr. Cutcliffe,
this is the level of Plaintiff’s amputation.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 6 of 13
6. IC 22-3-3-10(i)(2) requires a doubling of the amputation of a
little finger, valued at 4 degrees under IC 22-3-3-10(i)(1).
*****
9. Indiana worker’s compensation law does not divide the hand
into segments other than the fingers for the purposes of
impairment.
10. [ ] Doubling Dr. Cutcliffe’s 10% of the hand would pay
$11,200.00. Plaintiff encourages us to view the amputation as
1/3 of Plaintiff’s hand, along with the loss of her little finger
and asks us to double each to pay more than $50,000.00.
11. Pursuant to IC 22-3-3-10(i)(14), given the totality of the
evidence, using the higher rating of 13% of the hand and
adding in the value of the finger once to accomplish the
doubling required (because the finger is included once in the
hand rating), the Board affirms the SHM’s award of $12,880
as meeting the requirements of IC 22-3-3-10 within the
discretion of the Board.
Appellant’s App. Vol. II pp. 5-7. Senter now appeals.
Analysis
[11] The Worker’s Compensation Board, as the trier of fact, has a
duty to issue findings of fact that reveal its analysis of the
evidence and that are specific enough to permit intelligent review
of its decision. . . . “In reviewing a worker’s compensation
decision, an appellate court is bound by the factual
determinations of the Board and may not disturb them unless the
evidence is undisputed and leads inescapably to a contrary
conclusion.” . . . We examine the record only to determine
whether there is substantial evidence and reasonable inferences
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 7 of 13
that can be drawn therefrom to support the Worker’s
Compensation Board’s findings and conclusion. We will not
reweigh the evidence or reassess witness credibility.
Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009), trans.
denied (citations omitted). “‘As to the Board’s interpretation of the law, an
appellate court employs a deferential standard of review of the interpretation of
a statute by an administrative agency charged with its enforcement in light of its
expertise in the given area.’” Id. (quoting Brown, 892 N.E.2d at 646). The
Board will only be reversed if it incorrectly interpreted the Act. Id.
[12] As Appellee correctly notes in its brief:
The first and often the only step in resolving an issue of statutory
interpretation is the language of the statute. . . . When a statute
is clear and unambiguous on its face, we need not, and indeed
must not, interpret the statute. . . . Rather, we give the statute its
plain and clear meaning.
Goff v. Wal-Mart Stores, Inc., 719 N.E.2d 1260, 1262 (Ind. Ct. App. 1999), trans.
denied (citations omitted).
[13] Senter argues that the Board rendered a decision contrary to its own findings of
fact by acknowledging that Senter was required to partially amputate her hand,
but declining to award Senter, pursuant to the Statute, for that amputation.
Specifically, Senter’s argument is that both the SHM and the Board
“acknowledged the partial hand amputation but failed to conclude that an
award for such an injury was allowed under the statutes.” Appellant’s Br. p.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 8 of 13
13. While the Board awarded Senter for the amputation of her small finger and
the thirteen percent impairment of her hand, Senter argues she was also entitled
to an award for the partial amputation of the portion of her hand that did not
include the finger.
[14] The Statute sets forth compensation for employees regarding amputation as
follows:
(i) With respect to injuries in the following schedule occurring on
and after July 1, 1991, the employee shall receive in addition to
temporary total disability benefits, not exceeding one hundred
twenty-five (125) weeks on account of the injury, compensation
in an amount determined under the following schedule to be paid
weekly at a rate of sixty-six and two-thirds percent (66 2/3 %) of
the employee’s average weekly wages during the fifty-two (52)
weeks immediately preceding the week in which the injury
occurred.
(1) Amputation: For the loss by separation of the thumb,
twelve (12) degrees of permanent impairment; of the index
finger, eight (8) degrees of permanent impairment; of the
second finger, seven (7) degrees of permanent impairment;
of the third or ring finger, six (6) degrees of permanent
impairment; of the fourth or little finger, four (4) degrees of
permanent impairment; of the hand by separation below
the elbow joint, forty (40) degrees of permanent
impairment; . . .
(2) Amputations: For the loss by separation of any of the
body parts described in subdivision (1) on or after July 1,
1997, and for the loss by separation of any of the body
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 9 of 13
parts described in subdivision (3), (5), or (8),[ 2] on or after
July 1, 1999, the dollar values per degree applying on the
date of the injury as described in subsection (j) shall be
multiplied by two (2). However, the doubling provision
of this subdivision does not apply to a loss of use that is
not a loss by separation.
(3) . . . The loss of more than two (2) phalanges of a finger
shall be considered as the loss of the entire finger. . . . The
loss of not more than one (1) phalange of a finger shall be
considered as the loss of one-third (1/3) of the finger and
compensation shall be paid for one-third (1/3) of the
degrees payable for the loss of the entire finger. The loss
of more than one (1) phalange of the finger but not more
than two (2) phalanges of the finger shall be considered as
the loss of one-half (1/2) of the finger and compensation
shall be paid for one-half (1/2) of the degrees payable for
the loss of the entire finger.
*****
(9) Loss of use: The total permanent loss of the use of an
arm, a hand, a thumb, a finger, a leg, a foot, a toe, or a
phalange shall be considered as the equivalent of the loss
by separation of the arm, hand, thumb, finger, leg, foot,
toe, or phalange, and compensation shall be paid in the
same amount as for the loss by separation. However, the
doubling provision of subdivision (2) does not apply to a
loss of use that is not a loss by separation.
(10) Partial loss of use: For the permanent partial loss of
the use of an arm, a hand, a thumb, a finger, a leg, a foot,
a toe, or a phalange, compensation shall be paid for the
2
Subsections five and eight are inapplicable here.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 10 of 13
proportionate loss of the use of the arm, hand, thumb,
finger, leg, foot, toe, or phalange.
*****
(14) In all other cases of permanent partial impairment,
compensation proportionate to the degree of a permanent
partial impairment, in the discretion of the worker’s
compensation board, not exceeding one hundred (100)
degrees of permanent impairment.
(15) In all cases of permanent disfigurement which may
impair the future usefulness or opportunities of the
employee, compensation, in the discretion of the worker’s
compensation board, not exceeding forty (40) degrees of
permanent impairment except that no compensation shall
be payable under this subdivision where compensation is
payable elsewhere in this section.
*****
I.C. § 22-3-3-10(i) (emphasis added).
[15] The Statute does not expressly state the amount that should be awarded for the
ray amputation of Senter’s hand that does not include the finger. Instead, the
Statute states: “[i]n all other cases of permanent partial impairment,” the award
will be “compensation proportionate to the degree of a permanent partial
impairment, in the discretion of the worker’s compensation board.” I.C. § 22-3-
3-10(i)(14). The Statute also differentiates between a “loss of use that is not a
loss by separation.” I.C. § 22-3-3-10(i)(2), (9).
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 11 of 13
[16] Here, the SHM, as affirmed by the Board, found that Senter underwent both
“revision amputation little finger, ray amputation.” Appellant’s App. Vol. II p.
12. While the Board has discretion to fill in the gaps of the Statute, the Board
still must follow the Statute when, as here, the language is clear in
differentiating between loss of use and loss by separation and the calculation for
each. 3 The plain language of the Statute evidences that the legislature clearly
intended awards for loss by separation to be calculated differently than awards
for loss of use. The Board affirmed the SHM’s finding of separation by noting
the ray amputation and was required to calculate accordingly. See also
Appellee’s Br. p. 12 (“Senter underwent a ray amputation or ray procedure
incurring a partial amputation of the left hand (specifically, the outside portion
of the hand), and amputation of the left little or [fifth] finger as a consequence
of the Work-Related Accident.”).
[17] The distinction between loss by separation or loss of use matters because the
doubling provision applies to amputations “of the hand by separation below the
elbow joint. . . .” I.C. § 22-3-3-10(i)(1). 4 While we acknowledge that Senter is
not entitled to an award for loss of the entire hand, Appellees’ argument is
premised on the fact that no partial award can be given for amputation of the
hand. This is too narrow a reading of the Statute. We decline to find
3
The Board is not required to follow Senter’s calculations for what percentage of loss she should be awarded
for; however, failure to acknowledge partial amputation of the hand results in a loss for which the Statute
contemplates Senter should be compensated. For example, if the Board found the doubling provision applied
to the thirteen percent loss of Senter’s entire hand, based on our calculations, Senter would have been entitled
to an award of $14,560.00 or $1,680.00 more than she was awarded.
4
As noted above, the doubling provision applies to loss by separation, but not loss of use.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 12 of 13
specifically that Senter is entitled to compensation for one-third of her hand;
however, the Board should use its discretion to determine the percentage of the
hand amputation Senter should be awarded.
[18] Accordingly, we reverse and remand with instructions for the Board to
calculate Senter’s award consistently with the Board’s findings.
Conclusion
[19] The Board improperly calculated its award to Senter based on its factual
findings. Accordingly, we reverse and remand.
[20] Reversed and remanded.
Brown, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 19A-EX-1064 | December 12, 2019 Page 13 of 13