Sin-Mi Ward v. University of Notre Dame , 2015 Ind. App. LEXIS 27 ( 2015 )

Jan 22 2015, 10:16 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
WILLIAM A. RAMSEY KEVIN W. KEARNEY
Murphy Ice LLP Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SIN-MI WARD, )
)
Appellant-Plaintiff, )
)
vs. ) No. 93A02-1405-EX-317
)
UNIVERSITY OF NOTRE DAME, )
)
Appellee-Defendant. )
APPEAL FROM THE WORKER'S COMPENSATION BOARD
The Honorable Linda P. Hamilton, Chairman
The Honorable A. James Sarkisian, Hearing Member
Application No. C-205644
January 22, 2015
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Sin-Mi Ward appeals from an order of the Worker’s Compensation Board (“the Full
Board”) deciding her application for adjustment of claim against the University of Notre
Dame (“Notre Dame”) for disability benefits arising from a work related injury. The Full
Board adopted the findings and decision of the single hearing member awarding Ward
permanent partial impairment (“PPI”) benefits after finding that she had reached maximum
medical improvement from her injury.
We affirm.
ISSUES
Ward presents the following issues for our review:
I. Whether the Full Board improperly considered an Independent Medical
Examination (“IME”) report of a physician who described Ward as
“Oriental” in the report.
II. Whether there is sufficient evidence to support the findings and conclusions
of the Full Board.
III. Whether the Full Board correctly found that Notre Dame was not
required to reimburse Ward for unauthorized medical treatment.
FACTS AND PROCEDURAL HISTORY
On August 17, 2008, Ward was employed by Notre Dame as a food service associate
in a dining hall. On that date, Ward accidentally slipped on a floor on the premises injuring
her foot and ankle in the course of her employment. Ward reported the injury and Notre
Dame initially accepted Ward’s claim as compensable, authorizing medical treatment for
Ward’s ankle injury. Ward’s treatment included injections, pain management treatment,
and surgery.
2
Ward received authorized medical treatment from August 17, 2008 through
September 3, 2010, from her treating physician, Dr. Todd Graham, M.D. While Ward was
receiving treatment for her injury, she received temporary total disability (“TTD”) benefits
from May 12, 2009 to June 10, 2009 and for missing work on August 24, 2009. Since
Ward’s average weekly wage was $256.48, her TTD rate was $171.07.
On July 26, 2010, Ward filed an Application for Adjustment of Claim disputing that
her injuries had reached a permanent and quiescent state and that Notre Dame had paid all
the benefits to which Ward was entitled. Among the disputed issues was whether Ward
suffered from Reflex Sympathy Dystrophy (“RSD”) or Complex Regional Pain Syndrome
(“CRPS”) as a result of her ankle injury.
In a letter dated September 3, 2010, Dr. Graham expressed his opinion that Ward
suffered from chronic residual pain syndrome, but that her injury had reached maximum
medical improvement. Dr. Graham found that Ward had a permanent work restriction
requiring her to work light duty with an allowance each hour to perform activities while
sitting. Ultimately, Dr. Graham assessed a PPI rating of 12% of the left lower extremity,
which corresponded to a 5% rating of the whole person.
Ward disputed Dr. Graham’s medical opinion, so she filed a petition with the Full
Board for an order granting an IME. The Full Board granted Ward’s petition and she was
examined by the Full Board’s appointed physician, Dr. Shaun Kondamuri, M.D., on
January 24, 2011, at Notre Dame’s expense. Dr. Kondamuri determined that Ward was
not suffering from CRPS and that her injuries had reached maximum medical
improvement. He also noted that Ward had been diagnosed with an anxiety disorder
3
“suggesting perhaps a possible psychologic [sic] component to her overall condition.”
Appellant’s App. p. 346.
Ward also disputed Dr. Kondamuri’s opinion. She retained the services of Dr. Eric
M. Schreier, D.O., who conducted his own IME at Ward’s expense on June 22, 2011. Dr.
Schreier determined that Ward was not suffering from RSD and that her injuries had
reached maximum medical improvement. He agreed with her work restrictions and also
found that Ward appeared to have active depression due to her injury, but had a prior
history of anxiety and depression. Dr. Schreier assessed a PPI rating of 15% of the foot
below the knee which is the equivalent of a 6% PPI rating to the person as a whole. He
further stated, “Her disability as related to this chief complaint appears to be materially
greater than the allowable assigned impairment rating.” Id. at 406.
On February 2, 2012, Ward was examined by Dr. Joseph Corey, M.D., Ph.D. Dr.
Corey stated, “I think that the patient still may have [RSD] or [CRPS] in the left lower
extremity.” Id. at 375-76. He renewed a referral to Dr. Thomas Cheng, a pain specialist,
to determine if Ward had CRPS. Dr. Cheng examined Ward on February 23, 2012, and
determined that she was suffering from CRPS and that her pain was not currently
controlled. Dr. Cheng again opined that Ward suffered from CRPS when he examined her
on June 21, 2012.
A hearing was held on November 13, 2013 before a single hearing member. Ward
and her husband, Ken, testified, exhibits were submitted into evidence, and the parties
submitted a Stipulation of Facts and Stipulation of Issues. On November 19, 2013, the
single hearing member entered an order finding that Ward’s injuries had reached maximum
4
medical improvement, and Notre Dame was responsible for payment of only those medical
expenses for authorized treatment incurred and unpaid prior to the determination that
Ward’s injury had reached maximum medical improvement. Ward’s PPI rating was found
to be 6% of the person as a whole. The single hearing member found that Ward’s claim
regarding treatment for her depression, anxiety, or cardiac related issues was not supported
by sufficient medical evidence and found that Ward should bear the expense for that
treatment.
Ward appealed the single hearing member’s decision to the Full Board, before
which she appeared pro se. At the meeting of the Full Board, Ward confirmed that she had
been physically injured during the course of her employment at Notre Dame and noted that
she had never been physically injured prior to the incident at Notre Dame. Her husband,
Ken, who was also present at the hearing, asked why Dr. Kondamuri was allowed to refer
to Ward as “Oriental” in his IME report and sought to have the report discredited because
of the reference. The Full Board affirmed the findings and conclusions of the single hearing
member. Additional facts will be set forth as needed. Ward now appeals.
DISCUSSION AND DECISION
I. CONSIDERATION OF IME REPORT
Ward argues that it was improper for the single hearing member and the Full Board
to consider the IME report of Dr. Kondamuri. More specifically, she challenges Dr.
Kondamuri’s use of the term “Oriental” in his written description of her in the IME report.
For reasons we state below, we find that Ward’s argument has been waived for purposes
of appeal.
5
Ward, who was represented by counsel at the time her claim was reviewed by the
single hearing member, testified at the hearing but made no claim at that time challenging
Dr. Kondamuri’s report. Ken testified that he did not believe that the physician who
examined Ward was Dr. Kondamuri because the physician they met in the waiting room
appeared to be a different person than the person depicted in the picture of Dr. Kondamuri
on display in the waiting room. Prior to the hearing before the single hearing member,
Ward had stipulated to the admissibility of facts and exhibits, including Dr. Kondamuri’s
report. Therefore, the arguments made before the single hearing member did not concern
the admissibility of the report containing Dr. Kondamuri’s opinion about Ward’s injury,
and the descriptive reference was not challenged before the single hearing member.
“Courts generally favor stipulations that admit certain designated facts for the
purpose of simplifying and expediting litigation.” Albright v. Four Winds Intern., 950
N.E.2d 1251, 1258 (Ind. Ct. App. 2011), trans. denied (2012). Here, the issue was the
status of Ward’s injury, not any racial bias in favor of or against Ward. The parties
stipulated to the admissibility of the reports containing various doctors’ opinions of the
status of Ward’s injury. Therefore, the argument has been waived for purposes of review.
Waiver notwithstanding, the descriptive reference had no bearing on Dr.
Kondamuri’s evaluation of Ward’s injury and condition. Ward points to no evidence that
Dr. Kondamuri’s use of the term undermines the validity of his opinion on the nature and
extent of her injury. Further, any claim of bias would have been relevant to the evaluation
of Dr. Kondamuri’s credibility, a task left for the single hearing member. The Full Board’s
Statement of Fact dated March 10, 2014, explains that no new evidence is ever offered at
6
Full Board hearings as their task is to determine whether the single hearing member’s
decision comports with the Worker’s Compensation system, established case law, and
recognized practices. The Full Board considered the arguments presented by both sides
and issued its decision after reviewing the record. We find no error in the decision of the
single hearing member or the Full Board on this issue.
II. SUFFICIENCY OF THE EVIDENCE
Ward also challenges the sufficiency of the evidence supporting the single hearing
member’s and the Full Board’s award. More specifically, Ward disagrees with the Full
Board’s award because she contends there is evidence that she suffers from RSD or CRPS,
and the Full Board found that she had presented insufficient evidence to support that claim.
Before reaching the issues related to the Full Board’s decision, however, we must
determine the appropriate standard of review from the Full Board’s award which was
reached based on a paper record; de novo as is suggested by Ward, or deferential as is
suggested by Notre Dame. For reasons we explain below, we apply a standard of review
that is deferential to the Full Board’s award.
In Harris v. United Water Servs., Inc., 946 N.E.2d 35 (Ind. Ct. App. 2011), an appeal
from the grant of a motion to dismiss, one of the issues we addressed was the appropriate
standard of review to be used in an appeal from an administrative agency’s ruling based on
a paper record. We acknowledged that this Court has applied two different standards of
review in appeals from an administrative agency’s ruling in that context. In Gerlach v.
Woodke, 881 N.E.2d 1006, 1009 (Ind. Ct. App. 2008), aff’d on reh’g, trans. denied, we
applied the Trial Rule 12(B)(1) de novo standard of review. In Fitzgerald v. U.S. Steel,
7
892 N.E.2d 659, 662 (Ind. Ct. App. 2008), we applied the more deferential standard of
review to the agency’s determination.
Since those decisions, our Supreme Court’s opinion in N. Ind. Pub. Serv. Co. v. U.S.
Steel Corp., 907 N.E.2d 1012 (Ind. 2009) was handed down, and we have found that
decision instructive on the appropriate standard of review to be applied. In that case, the
issue was the agency’s decision to grant summary judgment for U.S. Steel in a dispute
concerning the interpretation of a settlement agreement previously approved by the agency.
In Harris we acknowledged that while “our supreme court [in NIPSCO] was also reviewing
a paper record . . . it determined that a more deferential standard should apply in recognition
of the agency’s expertise in the subject matter[,]” and applied that standard of review. 946
N.E.2d at 39.
Although this appeal does not concern a ruling on a motion to dismiss or a ruling on
a motion for summary judgment, but rather, an award by the Full Board based on a paper
record, we apply the more deferential standard of review from NIPSCO that was also
applied in Harris. This standard is also compatible and more consistent with the foundation
of the statutory language concerning appeals from awards by the Full Board. Indiana Code
section 22-3-4-8(b) (1986) states that “[a]n award by the full board shall be conclusive and
binding as to all questions of the fact, but either party to the dispute may . . . appeal to the
court of appeals for errors of law under the same terms and conditions as govern appeals
in ordinary civil actions.”
We have stated the more deferential standard of review as follows:
In reviewing a worker’s compensation decision, an appellate court is bound
8
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 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. 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. The Board
will only be reversed if it incorrectly interpreted the Act.
Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009) (citations and
quotations omitted), trans. denied.
The single hearing member and the Full Board considered the medical evidence
presented by both sides and found certain evidence to be more credible. In particular, the
single hearing member and the Full Board found the medical reports of Dr. Kondamuri,
Dr. Graham, and Dr. Schreier to be more credible and persuasive than other evidence
presented. Dr. Graham found that Ward had reached maximum medical improvement and
that she suffered from what he described as chronic residual pain syndrome. Dr.
Kondamuri found that Ward had reached maximum medical improvement and was not
suffering from CRPS. Dr. Schreier found that Ward was not suffering from RSD and had
reached maximum medical improvement. Although there was additional evidence from
other doctors who found that Ward suffered from CRPS or RSD, we cannot say that the
evidence before the single hearing member and the Full Board was undisputed and led to
a contrary conclusion. We will not reweigh the evidence or reassess witness credibility.
There was sufficient evidence to support the Full Board’s award, which used the higher
rating given by Dr. Schreier, the physician independently hired by Ward to conduct an
9
IME.
III. UNAUTHORIZED MEDICAL TREATMENT
Ward also disputes the Full Board’s decision that Notre Dame was not required to
pay for unauthorized medical treatment Ward received. Ward’s authorized medical
treatment included injections, pain management treatment, and surgery. She also received
treatment from other physicians regarding her ankle pain, but that treatment was not
authorized by the Full Board and the examinations occurred after three doctors had
determined that Ward had reached maximum medical improvement for her injury.
Therefore, the Full Board’s finding that Notre Dame was not responsible for any past or
future unauthorized medical treatment was supported by the record.
Likewise, the Full Board’s determination that Ward presented insufficient medical
evidence to support her claim that Notre Dame should bear the expense of Ward’s treatment
for depression, anxiety, and cardiac issues, is supported by the record. The Full Board
found that Ward did not provide sufficient evidence that those conditions arose out of or in
the course of her employment. Although there was evidence in the medical reports that
Ward was receiving treatment for those conditions, the Full Board agreed with the single
hearing member that there was insufficient evidence to conclude that those conditions arose
from Ward’s work injury. Ward’s argument amounts to an invitation to reweigh the
evidence. We will not do so on appeal. See Wright Tree Serv., 907 N.E.2d at 186.
CONCLUSION
In light of the above, we affirm the trial court’s decision.
Affirmed.
10
MATHIAS, J., and BROWN, J., concur.
11