William Gordon v. Toyota Motor Manufacturing of Indiana ( 2016 )


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  •                                                                                         FILED
    Apr 19 2016, 10:55 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
    Nathan B. Maudlin                                       Stephen S. Lavallo
    Klezmer Maudlin, P.C.                                   Kahn, Dees, Donovan & Kahn,
    New Harmony, Indiana                                    LLP
    Evansville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    William Gordon,                                         April 19, 2016
    Appellant-Plaintiff,                                    Court of Appeals Case No.
    93A02-1511-EX-2066
    v.                                              Appeal from the Indiana Worker’s
    Compensation Board
    Toyota Motor Manufacturing                              Application No. C-193891
    of Indiana,
    Appellee-Defendant.
    Najam, Judge.
    Statement of the Case
    [1]   William Gordon appeals the decision of the Full Worker’s Compensation
    Board of Indiana (“the Board”) affirming the Single Hearing Member’s decision
    awarding Gordon compensation for temporary total disability (“TTD”) benefits
    for injuries he sustained while working for Toyota Motor Manufacturing of
    Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016                           Page 1 of 13
    Indiana (“Toyota”). Gordon presents two issues for our review, which we
    consolidate and restate as a single issue, namely, whether the Board erred when
    it awarded Gordon TTD benefits for thirty weeks instead of the more than two
    years of benefits Gordon had sought.
    [2]   We reverse.
    Facts and Procedural History
    [3]   This court stated the facts and procedural history in Gordon v. Toyota Motor
    Manufacturing of Indiana, No. 93A02-1211-EX-910, 
    2013 WL 1442051
    at *1
    (Ind. Ct. App. April 9, 2013), as follows:
    The facts stipulated to by the parties indicate that Gordon was
    employed by Toyota Motor Manufacturing of Indiana
    (“Toyota”) on November 26, 2007, and earned an average
    weekly wage in excess of the statutory maximum. On that date,
    Gordon suffered an injury, affecting his left shoulder and neck, in
    an accident while in the course of his employment. Toyota
    acknowledged Gordon’s accidental injury and paid for certain
    medical services and supplies. On July 16, 2008, a doctor
    furnished by Toyota, Dr. Weaver, took Gordon off work.
    On July 24, 2008, Dr. Titzer, another physician furnished by
    Toyota, released Gordon to return to work with restrictions.
    Although Gordon attempted to return to work, he left his
    employment on August 5, 2008. Subsequently, one doctor
    recommended no further treatment for Gordon’s neck and one
    doctor recommended no more treatment for Gordon’s shoulder.
    On September 29, 2009, however, Dr. Wilson recommended
    additional treatment for Gordon’s shoulder. On October 20,
    2009, Toyota notified Gordon that it would not provide the
    treatment recommended by Dr. Wilson. On June 7, 2010, Dr.
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    Miller performed surgery on Gordon’s shoulder. Dr. Miller
    expected Gordon to return to full activity six months after the
    surgery and to have a full recovery without impairment.
    On August 11, 2008, Gordon had filed an Application for
    Adjustment of Claim related to his injury. Single Hearing
    Member Andrew S. Ward heard Gordon’s claim on October 17,
    2011, and on May 9, 2012, ordered Toyota to pay for certain
    medical treatment and to pay thirty weeks of TTD benefits. The
    following issues were presented for the Single Hearing Member’s
    review: 1) whether Gordon was entitled to an award of medical
    services and supplies, and if so, the medical services and supplies
    to which he was entitled; and 2) whether Gordon was entitled to
    an award of TTD benefits, and if so, the period of time to which
    he was entitled to those benefits.
    On June 5, 2012, Gordon sought review of his claim by the
    Board and on October 11, 2012, by a vote of 6-1, the Board
    adopted and affirmed the Single Hearing Member’s award.
    [4]   On appeal, we held as follows:
    Here, there are no findings of the facts that underlie the Board’s
    decision. Rather, the Board merely makes two unsupported legal
    conclusions; namely that Gordon was entitled to an award of
    statutory medical-expenses compensation and to thirty weeks of
    TTD benefits. From these sparse findings, we are unable to
    determine the Board’s reasoning process. From the record
    presented to us, we are unable to determine whether the Board’s
    determination is in accordance with the law or whether the
    determination is arbitrary or capricious. Thus, we are compelled
    to conclude that this matter must be vacated and remanded to the
    Board with instructions to issue findings of fact and conclusions
    thereon which comport with the Indiana Administrative Orders
    and Procedures Act such that we can conduct, if necessary, our
    appellate review of the Board’s determination.
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    Id. at *3.
    [5]   On remand, the Single Hearing Member issued new findings of fact and
    conclusions thereon. Paragraphs numbered one through twelve of the findings
    were identical to the Single Hearing Member’s first decision, but the new
    decision included additional findings and conclusions as follows:
    13. At hearing Plaintiff requested that the expenses of Drs.
    Franklin Wilson and Peter Millett be ordered paid by Defendant.
    14. Plaintiff’s counsel sent him for a consultative examination
    with Franklin D. Wilson, M.D. Dr. Wilson referred to the
    examination as an “Independent Medical Examination” which
    has a given meaning in the medical community as specifically
    not including medical care and treatment. Dr. Wilson’s report
    was not of sufficient weight and authority as to merit an award
    against Defendant for its expense.
    15. Plaintiff testified to a good recovery following the surgery by
    Dr. Millett. The Single Hearing Member is persuaded that Dr.
    Millett’s treatment was appropriate and necessary to Plaintiff’s
    condition. Dr. Millett’s report established that approximately six
    (6) months after the operation he would expect Plaintiff to return
    to full activity. Plaintiff confirmed that was the case through his
    testimony.
    CONCLUSIONS OF LAW
    1. Given the fact that Plaintiff’s treatment and surgery at the
    hands of Dr. Millett were necessary, appropriate, and successful,
    Plaintiff is entitled to an award as statutory medical for such
    treatment and surgery beginning April 13, 2010 and ending June
    7, 2010.
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    2. As noted in the Findings above, Dr. Weaver took Plaintiff off
    work on July 16, 2008. The record specifically notes that it
    would be for four (4) weeks.
    3. Taking the four (4) week period referenced by Dr. Weaver
    together with the six (6) months after Dr. Millett’s successful
    surgery, the Single Hearing Member concludes Plaintiff is
    entitled to an award of thirty (30) weeks of temporary total
    disability.
    Appellant’s App. at 8-9. The Full Board affirmed and adopted the Single
    Hearing Member’s decision. This appeal ensued.
    Discussion and Decision
    [6]   Gordon contends that the Board erred when it did not award him TTD benefits
    for the entire time of his temporary total disability, namely, from August 5,
    2008, until December 7, 2010, or approximately 121 weeks. In particular,
    Gordon maintains that the undisputed evidence shows that, while Toyota
    offered him a job with restrictions following the accident, Gordon was
    physically unable to do that job because of his temporary total disability. Thus,
    Gordon asserts that his refusal to continue working for Toyota on August 5,
    2008, was justifiable and he is entitled to TTD benefits for 121 weeks, not thirty
    weeks.
    [7]   Gordon is correct that, under Indiana Code Section 22-3-3-11 (2008), an
    employer is permitted to reduce its worker’s compensation obligation by
    procuring for the injured employee employment by which he can earn some
    wages without injury to himself. K-Mart Corp. v. Morrison, 
    609 N.E.2d 17
    , 31
    Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 5 of 13
    (Ind. Ct. App. 1993), trans. denied. Subsection (a) of the statute provides that, if
    a partially disabled employee 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. 
    Id. Here, Gordon
    testified in
    relevant part as follows:
    Q: Okay. So Gary Weaver[, Toyota’s worker’s compensation
    liaison] called you on July 24th of 2008?
    A: Yes.
    Q: What did he tell you?
    A: He told me that I needed to return to work that evening, at
    which point I informed him that I had been to the emergency
    room and been in severe pain from my injuries, and I was very
    confused on why, you know, because of the last doctor orders I
    had were that I was to be off work. And he said there had been
    some changes and that I needed to get up and make sure I
    brought myself into work.
    Q: Okay. So Dr. Weaver took you off work for four weeks on
    July 16th, 2008?
    A: Yes.
    ***
    Q: [Then Gary Weaver] said there had been a change and he
    told you to report to work on July 24th of 2008?
    A: Yes.
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    Q: Did you go back to work?
    A: Yes, I did.
    Q: You reported to work that night?
    A: Yes, I did.
    Q: What happened?
    A: I was called into the IHS, the [on-site] hospital [at Toyota], to
    speak to the doctor and they. . . .
    Q: Was this Dr. Titzer?
    A: Dr. Titzer, yes.
    Q: Okay. Go ahead.
    A: Him and Tammy Freeman, which I believe was the
    specialist. I didn’t understand. I’d never met her before. But I
    met with the both of them, and they told me there had been
    changes, that I was supposed to come back to work, that I was no
    longer to be off for this period of time and to return to work, and
    they were going to find something for me to do.
    Q: Were you surprised that they wanted you to come back to
    work light-duty?
    A: Yes.
    Q: Okay. Were you surprised with this happening?
    A: Yes, because the last time I had spoken with the doctor, I was
    in pain. I mean, the doctor had told me that light-duty was not
    sufficient, that I was in . . . .
    Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 7 of 13
    Q: That you should be off work?
    A: . . . significant pain and I should be off work, yes.
    ***
    Q: Dr. Weaver took you off work and then Dr. Titzer put you
    back on?
    A: Brought me back to work.
    Q: Did you do the light-duty work that they wanted you to do
    after July 24th of 2008?
    A: I attempted it.
    Q: What was the job at this time?
    A: It was what they called gate check. I had to stand and inspect
    different parts in different areas of the plant. It’s a sedentary job
    where you sit and watched, you know, or inspected parts coming
    by but I was still was unable to do the job.
    Q: Why not?
    A: I was in excruciating pain. I was throwing up, nauseated. I
    was having migraine headaches and terrible, terrible pain. It hurt
    when I breathed in the back of my shoulder here (WITNESS
    INDICATING).
    ***
    Q: Now, on August 5th, you left your employment with Toyota?
    A: Yes, I did.
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    Q: Why did you leave?
    A: Because I could no longer continue. I was in terrible, terrible
    shape having the headaches, you know, just miserable headaches
    and throwing up and medically I couldn’t continue it.
    Q: Were you having problems with your shoulder?
    A: Yes, severe pain in my shoulder, pain when I was breathing.
    I could no way [sic] continue.
    Q: So what did you do? Who did you talk to? Did you talk to
    this fellow [indicating to man in hearing room named Scott
    Ward]?
    ***
    A: [Yes.] I told him, you know, I had to instruct people to get
    him to line us out. You know, I told him I could no longer
    continue, that medically I just, I couldn’t keep it up, that I was,
    you know, he knew I’d been nauseated. I’d been running to the
    bathroom to throw up and the pain in my shoulder was terrible,
    and I know if I were to continue like that, I would . . . .
    Q: What did he say to you?
    A: That [he] had no problem with that. He said he would get
    my effects in order and my things in order and make sure my
    employment was done so I could go.
    Q: Okay. So you’ve decided to go ahead and take yourself or
    leave that job?
    A: Yes, I did.
    Q: If you were to just walk off the job where your equipment
    had been but you couldn’t do it, what would happen to you?
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    A: Well, I would have it on my record. I would have a, you
    know, a firing that—I’ve never had a firing or anything on my
    record. And I didn’t know whether, because of the
    circumstances of the work comp and everything else, any future
    employment, I did not want a firing on my record.
    Q: At this point, you had worked for Toyota for six years?
    A: Yes, sir.
    ***
    Q: So you decided to leave on this date voluntarily?
    A: Yes.
    Q: So you wouldn’t be fired?
    A: Yes, so I wouldn’t be fired.
    Appellant’s App. at 31-38. Given this undisputed evidence that Gordon
    terminated his employment at Toyota because his work-related injuries
    prevented him from doing even the sedentary work he was offered on July 24,
    2008, we hold that Indiana Code Section 22-3-3-11 applies here. However, the
    Board did not make any findings relevant to that evidence, and the Board made
    no determination under Indiana Code Section 22-3-3-11(a) whether Gordon’s
    “refusal” to do the work was justifiable.1 In this respect, the Board’s findings
    are inadequate.
    1
    We reject Toyota’s attempt to analogize the circumstances of Gordon’s leaving work to those of the
    claimant in Borgman v. Sugar Creek Animal Hospital, 
    782 N.E.2d 993
    (Ind. Ct. App. 2002), trans. denied. In
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    [8]   But this deficiency in the findings does not require another remand. Whether
    or not the Board had found Gordon’s refusal to do the light duty work was
    justifiable, Gordon is still entitled to TTD benefits beginning August 5, 2008, as
    a matter of law. That is because Indiana Code Section 22-3-3-11(b) provides
    that, before compensation can be denied under the statute, the employee must be
    served with a notice setting forth the consequences of the refusal of employment
    under that section. The notice must be in a form prescribed by the worker’s
    compensation board. 
    Id. Gordon maintains
    that Toyota did not provide him
    with any such notice and, thus, that Toyota could not deny him benefits based
    on his refusal to do the light duty work it had offered him.2 On appeal, Toyota
    does not contend, and there is no evidence in the record, that Toyota complied
    with the notice requirement under the statute.
    Borgman, the injured claimant “voluntarily terminated her employment with Sugar Creek due to reasons
    unrelated to her work injury[.]” 
    Id. at 997.
    In particular, the evidence showed that Borgman “voluntarily
    terminated her employment at Sugar Creek because of personal difficulties that she had experienced with a
    co-worker.” 
    Id. at 994.
    Here, however, the undisputed evidence in this case shows that Gordon quit because
    of his work-related injuries. To the extent Toyota contends that Gordon was required to “request to be
    moved, accommodated, or for further treatment” in order to continue getting TTD benefits, Toyota does not
    support that contention with citation to relevant authority. Appellee’s Br. at 12. And we reject Toyota’s
    assertion that Indiana Code Section 22-3-3-11 “has no applicability to this situation whatsoever.” 
    Id. at 17.
          Toyota takes some of Gordon’s testimony out of context to support its contention that Gordon “voluntarily
    terminated his employment[.]” 
    Id. Gordon’s testimony,
    in its entirety, was that he was physically unable to
    continue the light duty work because of his work-related injuries.
    2
    Toyota avers that Gordon has waived this issue for our review because he raised it for the first time to the
    Full Board. In support of its waiver argument, Toyota cite Four Star Fabricators v. Barrett, 
    638 N.E.2d 792
          (Ind. Ct. App. 1994). But in Four Star, we held that “Four Star’s objection at the hearing for lack of
    foundation [for the admission a medical report] was too general and was ineffective to preserve error for
    appellate review of the hearing member’s ruling.” 
    Id. at 797.
    Toyota does not explain how that holding
    relates to the issue here, namely, whether Gordon has waived the issue of Toyota’s compliance with a statute
    by raising it for the first time to the Full Board. Our holding in Four Star is inapposite here.
    Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066        April 19, 2016                 Page 11 of 13
    [9]    The Full Board found that Gordon’s argument on this notice issue “was raised
    for the first time at the Full Board arguments and no evidence was introduced at
    the Single Hearing Member hearing.” Appellant’s App. at 15. We disagree.
    Gordon presented evidence at the hearing before the Single Hearing Member to
    show that his refusal to do the light duty work was justifiable. Thus, Indiana
    Code Section 22-3-3-11 applies here, as a matter of law. See, e.g., Vander Woude
    v. First Midwest Bank, 
    45 N.E.3d 847
    , 856 (Ind. Ct. App. 2015) (holding that,
    because statute applied to case as a matter of law, Bank had not waived
    applicability of statute by waiting until appeal to raise issue). Once Gordon
    testified that he had terminated his employment because he was physically
    unable to do the light duty work, the burden shifted to Toyota to show that it
    had complied with the notice provision of the statute, but Toyota did not
    present any such evidence. The Full Board erred to the extent that it found
    Gordon had waived the notice issue. Gordon was not required to point out to
    the Single Hearing Member that Toyota had not met its burden. Because notice
    was required as a matter of law, it was appropriate for Gordon to raise the
    notice issue for the first time to the Full Board.
    [10]   Further, Gordon’s argument to the Full Board on the notice issue preserved that
    issue for our review. This court has said that, in a worker’s compensation case,
    we will not review a claim that was not raised before either the Single Hearing
    Member or the Board. See Indiana Michigan Power Co. v. Roush, 
    706 N.E.2d 1110
    , 1115 n.4 (Ind. Ct. App. 1999) (emphases added), trans. denied. Here,
    because Gordon raised the notice issue to the Full Board, he has not waived it.
    Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 12 of 13
    And because there is no evidence that Toyota gave Gordon the notice required
    pursuant to Indiana Code Section 22-3-3-11(b), Gordon is entitled to TTD
    benefits from August 5, 2008, through December 7, 2010. See, e.g., 
    K-Mart, 609 N.E.2d at 32
    .
    [11]   Reversed.
    Robb, J., and Crone, J., concur.
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