Platinum Construction Group, LLC v. Christopher Collings , 2013 Ind. App. LEXIS 192 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
SALLY P. NORTON JULIE A. DUGAN
Doran, Blackmond, Norton LLC Dugan, Repay & Rybicki, P.C.
Granger, Indiana St. John, Indiana
Apr 26 2013, 9:29 am
IN THE
COURT OF APPEALS OF INDIANA
PLATINUM CONSTRUCTION )
GROUP, LLC, )
)
Appellant-Respondent, )
)
vs. ) No. 93A02-1210-EX-882
)
CHRISTOPHER COLLINGS, )
)
Appellee-Claimant. )
APPEAL FROM THE INDIANA WORKER’S COMPENSATION BOARD
The Honorable Linda P. Hamilton, Chairperson
Application No. C-202818
April 26, 2013
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Platinum Construction Group, LLC (“Platinum”) appeals an order of the Worker’s
Compensation Board (“the Board”) awarding benefits to former Platinum construction
supervisor Christopher Collings for injuries he suffered to his back, neck, and hip during a
2009 accident on the job. Platinum contends that the Board erred in awarding Collings sums
for temporary total disability (“TTD”). Platinum also challenges the sufficiency of the
findings supporting the Board’s order awarding Collings sums for permanent partial
impairment (“PPI”). We affirm.
Facts and Procedural History
In 2009, thirty-six-year-old Collings was working as a construction superintendent for
Platinum. He had worked for Platinum for four years and had fifteen years’ previous
experience in construction. On January 30, 2009, while framing a house, a twenty-by-
fourteen-foot wall fell on him, causing injury to his neck, back, and hip. Platinum instructed
that he be evaluated at a certain clinic rather than at a hospital. Platinum deemed Collings’s
injury compensable and provided authorized treatment through Drs. Michael Yergler and
Todd Graham, who diagnosed Collings with a non-displaced fracture of the iliac crest and
disc herniations at C5-6, C6-7, T2-3, and T4-5. Dr. Yergler ordered that Collings remain
completely off work until March 6, 2009, during which time Collings received TTD benefits
totaling $3180. On March 6, 2009, Dr. Yergler released Collings to full duty, and his TTD
benefits were terminated. Collings was never placed on limited duty. About that time,
Platinum laid off its employees and closed its doors, so Collings filed a claim for
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unemployment compensation. He attempted to work construction for two other contracting
companies, but his pain prevented him from performing the tasks associated with the work.
In total, he earned about $1200 from his limited work for the two companies. He also started
his own construction company but did not earn any income because his ongoing physical
limitations prevented him from completing any projects.
Collings was released from authorized care in November 2009, whereupon Dr.
Yergler rated his hip PPI at 0%, and Dr. Graham rated his neck and back PPI at 7%. He
continued to experience pain and consulted with Dr. Robert Martino, who determined that
additional treatment was necessary. Due to conflicting conclusions by the various doctors,
Platinum sought an independent medical examination (“IME”). The Board appointed Dr.
Peter Carney, who determined that Collings had been disabled since the time of the accident,
that he was not at maximum medical improvement (“MMI”), and that a work hardening
program was necessary. Collings participated in a work hardening program from May 2 to
May 26, 2011. In December 2011, Collings sought a second opinion at the Spine Institute,
where Dr. Jamie Gottlieb examined him. In an in-depth report, Dr. Gottlieb found that
Collings’s injuries left him limited in his daily activities and rated Collings’s PPI at “18%
based on AMA guidelines.” Ex. I.
In early 2012, Collings filed an application for adjustment of claim with the Board.
After a hearing on the matter, the hearing member issued a decision containing findings of
fact and conclusions of law, awarding Collings $35,526 in additional TTD benefits, plus
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$26,210 in PPI benefits, for a total of $61,736 plus limited attorney’s fees. Appellant’s App.
at 7. Platinum appealed to the full Board.
In an order dated October 10, 2012, the Board expressly adopted the hearing
member’s findings and conclusions and affirmed the member’s decision. Platinum now
appeals. Additional facts will be provided as necessary.
Discussion and Decision
Platinum challenges the Board’s order awarding worker’s compensation benefits to
Collings, and as such, confronts a stringent standard of review. When we review a decision
of the full Worker’s Compensation Board, we are bound by the Board’s factual
determinations and will not disturb them unless the evidence is undisputed and leads
inescapably to a contrary conclusion. Howard v. U.S. Signcrafters, 811 N.E.2d 479, 481
(Ind. Ct. App. 2004). We neither reweigh evidence nor judge witness credibility. Id. Rather,
we must disregard all evidence unfavorable to the decision and examine only the probative
evidence and reasonable inferences supporting the Board’s findings. Id.I. Temporary Total Disability
Immediately following his injury, Collings received a total of about $3000 for five
weeks of TTD. Platinum asserts that the Board erred in awarding Collings an additional
$35,526 for TTD. The purpose of awarding TTD payments under the Indiana Worker’s
Compensation Act is to compensate an employee for his loss of earning power because of an
accidental injury arising out of, and in the course of, his employment. Ind. Code § 22-3-2-
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2(a); Ballard v. Book Heating & Cooling, Inc., 696 N.E.2d 55, 57 (Ind. Ct. App. 1998), trans.
denied.
During the period of time that a claimant undergoes treatment for an injury, it
is relevant whether the injured workman has the ability to return to work of the
same kind or character. If the injured worker does not have the ability to
return to work of the same kind or character during the treatment period, he is
temporarily totally disabled and may be entitled to benefits.
Id. (emphasis added) (citations omitted).
Here, the parties do not dispute that Collings’s injuries arose out of, and in the course
of, his employment. However, Platinum specifically argues that Collings was ineligible for
additional TTD benefits because he applied for and received unemployment benefits. The
premise behind this argument is that the two claims are incongruous because a TTD benefits
claimant is asserting an inability to work, whereas an unemployment benefits claimant is
asserting that he is able-bodied, available, and making an effort to find work. Id. at 57-58.
See also Ind. Code § 22-4-14-3(b) (stating that an unemployed person is eligible for benefits
only if physically and mentally able to work, available for work, making an effort to secure
work, and participating in reemployment services). In Ballard, another panel of this Court
affirmed the Board’s denial of TTD benefits to a claimant who was also receiving
unemployment benefits, where the findings of fact stated that the claimant was physically and
mentally able to work. Id. at 58. The Ballard court noted that our statutes do not specifically
prohibit a claimant from receiving both types of benefits and examined the varying
approaches taken in other jurisdictions, i.e., allowing, denying, or reducing one type of
benefits when the claimant is already receiving the other. Id. at 57-58. The Ballard court
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seemed most concerned that claimants not receive a windfall in the form of dual benefits,
while simultaneously raising mutually exclusive arguments about his physical ability/inability
to work. Id.Here, the Board considered the extent of Collings’s injuries, the authorized
physician’s decision to release him to full and not limited work duty, and Platinum’s decision
to lay off all of its employees and close its doors, and determined that Collings was unable to
meet the physical demands of returning to work of the same type and character. The
following findings offer insight into the Board’s reasoning concerning the effect of
unemployment benefits on Collings’s eligibility for TTD benefits:
6. With no TTD benefits and no job to return to, Collings filed for
unemployment benefits, which he received from March 28, 2009
through March 6, 2011 at a rate of $390 per week, leading to a total
benefit amount of $37,050. Collings also attempted to work during that
time and earned approximately $1200.
….
13. Collings was not fit to return to work without limitation as of March 6,
2009.
14. No evidence exists that Platinum could have or would have provided
light duty within the restrictions outlined by Dr. Carney [the
independent medical examiner].
15. The worker’s compensation statute allows for the collection of TTD
benefits if the claimant cannot return to work of the same kind and
character. Here, Collings was a construction worker that could not
perform his job duties in [sic] as outlined by Dr. Carney.
16. Unemployment requires only that a claimant be physically and mentally
able to work in some capacity, that claimant is available to work and
making and [sic] effort to work, a much lesser standard than that
outlined by the worker’s compensation statute.
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17. Collings is not entitled to a windfall of duplicative benefits and
Platinum should be given a credit for all unemployment benefits
collected.
….
19. Collings is entitled to temporary total disability benefits from March 7,
2009 through the date he was again released from work hardening at
Maximum Medical Improvement on May 26, 2011 for a total of 116
weeks at his TTD rate of $636 per week. This leads to a total benefit
amount of $73,776.00. After credit for unemployment of $37,050.00
and the $1200.00 Collings collected in earnings, a balance of
$35,526.00 is due and owing.
Appellant’s App. at 5-6 (emphases added).
Simply put, Collings was unable to perform work of the same kind and character due
to the injuries that he suffered while working for Platinum. As a result, he met the statutory
requirements to receive TTD benefits. After Dr. Yergler released him to full duty, he
attempted to perform construction work but was unsuccessful. At the same time, he was
willing, able, and available to work in a capacity that was less physically taxing, as required
by the unemployment compensation statute. Because the Board credited Platinum for the
sums that Collings had received as unemployment benefits, Collings did not receive a
windfall. Thus, his benefits cannot be characterized as duplicative. Under these facts, the
Board did not err in concluding that Collings’s receipt of unemployment benefits did not
preclude him from eligibility for TTD benefits.
Platinum also contends that Collings is not entitled to additional TTD benefits because
he waived his right to object to his release to full duty as well as his right to request an IME
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by failing to dispute the proposed termination of TTD benefits as listed on state form 38911.
Form 38911 states in part,
Employees who disagree with the proposed termination must serve a copy of
this disagreement notice to the Worker’s Compensation Board and the
employer within seven (7) days after receipt of the termination portion of this
notice. Please sign below to make an independent medical examination
request. An employee may request an independent medical examination to
resolve a medical issue dispute.
Ex. B. An employee who disputes the proposed termination or wants to request an IME is
instructed to check the appropriate box and mail the form to the Board at the address listed on
the form. The concluding section of the form states, “Employer and employee must sign
below to certify service or acknowledge receipt of this notice.” Id. Notably, the space for
the employee’s signature is blank. Id. Collings never signed it.
Collings asserts that he never received the form. The Board examined the unsigned
form and specifically found that “Collings did not receive the state form 38911 providing
him notice of his right to object to the return to work finding and request an IME at that
time.” Appellant’s App. at 5. Because the form did not contain Collings’s signature as
required and there is no other evidence indicating that Collings in fact received it, the Board
did not err in finding that he never received the form and that he therefore waived neither his
right to dispute the proposed termination of TTD benefits nor his right to request an IME.
Platinum also challenges the Board’s award of additional TTD benefits on the grounds
that during the time covered by the TTD award, Collings attempted to work for two different
companies and to start his own business. In other words, Collings was allegedly working
construction while claiming that he had a disability that prevented him from working
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construction. Collings testified that he had attempted to work on construction projects for
two different companies and had made approximately $1200 total, but that he was fired from
the projects when he could not complete the tasks due to severe pain associated with the
work. Ex. D. He also formed his own construction company but was never paid for his
projects because he could not complete the work and eventually had to turn the projects over
to other contractors. Id. In its findings, the Board emphasized that Collings had no job to
return to, since Platinum had closed its doors. His TTD benefits had terminated, and he
attempted to perform construction work but was physically incapable of doing so. In short,
Collings unsuccessfully attempted to perform the same kind and character of work that he
had previously performed. In reaching its final damage award on the TTD benefits, the
Board subtracted the meager amount that Collings had made from his sporadic work over the
two-year period from March 2009 to March 2011. We find no error here.
II. Permanent Partial Impairment
Platinum also challenges the sufficiency of the Board’s findings supporting its order
awarding Collings sums for PPI. We disagree. Because the Board is the trier of fact, it has a
duty to make findings that reveal its analysis of the evidence and that are specific enough to
permit intelligent review. Smith v. Henry C. Smithers Roofing Co., 771 N.E.2d 1164, 1167
(Ind. Ct. App. 2002).1 The more complex the factual disputes, the greater the specificity that
is required, i.e., complex medical issues require particularly detailed findings. Id. at 1167-68.
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In Smith, the deficiency in the Board’s findings concerned the aggravating effect of the employee’s
work-related injury on his pre-existing condition. 771 N.E.2d at 1168-69.
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Here, the Board made the following findings concerning Collings’s PPI:
7. Collings was released from authorized care on November 23, 2009 with
a 0% Permanent Partial Impairment rating by Dr. Yergler for his iliac
fracture, and a 7% PPI by Dr. Graham for his neck and back injuries.
8. Collings continued to have ongoing pain and limitation; hence, he
sought consult with Dr. Robert Martino, who opined additional
treatment was necessary.
8.[sic] In an effort to resolve the dispute as to whether additional treatment
was necessary, Platinum requested a Board appointed Independent
Medical Examination, which was granted.
9. Collings’ Board appointed IME went forward with Dr. Peter Carney on
December 15, 2010 and Dr. Carney filed his report with the Worker’s
Compensation Board on January 18, 2011 indicating Collings was not
at MMI, that a work hardening program was necessary and that
Collings has been disabled since the time of the incident, with several
restrictions.
10. Platinum supplied work hardening as suggested by Dr. Carney from
May 2, 2011 through May 26, 2011.
11. Collings continued to be limited in his daily activities, for which Dr.
Gottlieb has supplied an 18% PPI.
….
20. Collings has reached maximum medical improvement. He is entitled to
a Permanent Partial Impairment rating of 18% of the whole person as
indicated by Dr. Gottlieb.
21. 18% of the whole person impairment has a statutory value of
$26,210.00 based on Collings[’s] date of injury of January 20, 2009.
Appellant’s App. at 5-7.
Essentially, Platinum complains that these findings are inadequate because “there is no
mention of the credibility of the several competing medical opinions offered by Platinum
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Builders and there is no explanation for the [Board’s] adoption of the 18% PPI rating over
the 0% and 7% PPI ratings.” Appellant’s Br. at 13. The findings make it clear that Collings
continued to have pain and limitation after he received the November 2009 PPI ratings from
Platinum’s authorized physicians and that his continued impairment resulted in his treatment
by IME Carney and eventually Dr. Gottlieb. By the time Dr. Gottlieb assessed Collings at
18% PPI, two years had elapsed. Thus, it was not merely a matter of the Board discrediting
one physician in favor of another; rather, the passage of time and Collings’s continued
impairment were relevant. The 18% PPI rating is supported by Dr. Gottlieb’s in-depth
report, which specifically states that the rating is based on AMA guidelines. Ex. I. To the
extent Platinum now appears to challenge the relative credibility of the physicians, we remind
him that we may neither reweigh evidence nor judge witness credibility.
In short, the Board’s findings are adequate for review and support its conclusions, and
the conclusions support the judgment. Accordingly, we affirm the Board’s judgment in all
respects.
Affirmed.
ROBB, C.J., and FRIEDLANDER, J., concur.
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