Best Chairs, Inc. v. Sheena Matheis (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 07 2017, 8:27 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Karl Popowics Nathan B. Maudlin
Goodin Abernathy, LLP Klezmer Maudlin, P.C.
Indianapolis, Indiana New Harmony, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Best Chairs, Inc., July 7, 2017
Appellant, Court of Appeals Case No.
93A02-1611-EX-2480
v.
Appeal from the Indiana
Sheena Matheis, Worker’s Compensation Board
Appellee. The Honorable Linda Peterson
Hamilton, Chairperson
Application No. C-229290
Brown, Judge.
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[1] Best Chairs, Inc., appeals from the order of the Indiana Worker’s
Compensation Board (the “Board”) which affirmed the decision of the single
hearing member on Sheena Matheis’s application for adjustment of claim. We
revise and consolidate the issues presented on appeal as whether the Board
erred in entering its order. We affirm.
Facts and Procedural History
[2] Matheis began her employment with Best Chairs in September 2013 and
worked in the off-bearer department where she measured and stacked rails and
used a band saw to cut scrap wood. On January 21, 2015, Matheis arrived at
work at 6:00 a.m., took a work break from approximately 2:30 p.m. to 2:40
p.m., and when she returned to work took some scrap to cut on the band saw
while wearing gloves. As she leaned over to shut the machine off, Matheis
noticed that she had sustained a laceration to her right thumb. The laceration
did not completely sever her thumb, but her thumb and the glove were hanging.
Matheis went to the restroom and wrapped her hand with paper towels.
Matheis exited the restroom, encountered her co-worker Kelly right outside the
restroom, and asked Kelly to tell their supervisor Peggy that she was sick and
was leaving.1
1
Matheis testified at the single member hearing that she told Kelly that she had cut off her thumb but to tell
Peggy that she was not feeling well. Kelly testified that Matheis asked if she could tell Peggy that she was not
feeling well and did not say that she had been injured.
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[3] Matheis clocked out at 2:46 p.m. and drove herself to the emergency room at
Memorial Hospital and Health Care Center in Jasper, Indiana, where she was
registered at 2:57 p.m. When Matheis arrived at the hospital, her thumb was
attached by the skin. She reported that the accident occurred at home. The
doctor completed the amputation of Matheis’s thumb, and Matheis and her
thumb were sent by air ambulance to Jewish Hospital in Louisville, Kentucky,
for possible replantation of her thumb. Matheis arrived at Jewish Hospital at
approximately 5:00 p.m. She stayed in Louisville for five days, but the
attempted replantation was unsuccessful, and Matheis underwent an operation
on January 26, 2015, for revision amputation at the interphalangeal joint level.
She received a letter in the mail from Best Chairs stating that her employment
was terminated effective January 21, 2015,2 and her health insurance was
cancelled.
[4] On March 27, 2015, Matheis filed an application for adjustment of claim. On
March 28, 2016, a hearing was held before a single hearing member of the
Board. At the hearing, the parties submitted a joint exhibit stipulating that
Matheis sustained a complete amputation to her right thumb on January 21,
2015. Matheis testified that she had taken Lortab the morning of the accident
for her shoulder, it was not prescribed to her, she obtained Lortab “[o]ff the
2
Matheis testified that the letter stated she was terminated “because of I got two points for leaving without
telling anybody. And then it would have been the third time I missed that month, so they added another
point. So, I basically pointed out.” Transcript at 34.
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street,” and she “would take a half of one at a time.”3 Transcript at 12. She
indicated it did not affect her vision, balance, “judgment as far as how far this is
from there,” or ability to work or drive. Id. at 13. When asked why she asked
Kelly to tell her boss that she was sick, Matheis testified “[b]ecause I was
panicking and I didn’t know what to do because I left because I just cut off my
thumb” and “I didn’t how [sic] to handle the whole situation because I knew I
had Lortabs in my system and it just scared me.” Id. at 18. Matheis indicated
she was scared of losing her job and that her first fear was losing her thumb.
She testified that she said at the hospital that her injury happened at home
because she was “scared to lose [her] job because [she] left without doing proper
procedures going through them.” Id. at 22. She stated that she sent a text
message from the hospital to Kevin Fromme, who was a supervisor at Best
Chairs and the father-in-law of her sister, and the text message admitted into
evidence shows that Matheis stated that she had “cut [her] finger on the
bandsaw,” she did not “want to go to imed,” she was sorry for letting Fromme
down, she had been taking pain pills, and she wanted him to know she was
okay. Exhibits at 32. Matheis testified that Fromme was her sister’s father-in-
law and was like a father-in-law to her as well, and that she went back to work
for another employer on April 1st.
3
When asked “in your deposition you said you had taken it a week before or something,” Matheis replied “I
might have,” “[i]t’s been like a year,” and “I was taking Lortab at the time because of my shoulder.”
Transcript at 12.
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[5] On cross-examination, Matheis indicated that she learned during her
orientation that she was supposed to tell a supervisor if she became hurt at work
and that she had been given an employee manual which forbid the use of
prescription medication without a valid prescription. When asked “[a]s you
worked at Best Chairs you learned that if somebody got hurt at work generally
the place they would send you is this outfit called IMED; am I right,” Matheis
replied “[c]orrect.” Transcript at 38. She further indicated that, after she left
the restroom and spoke to Kelly, she picked up her lunch box and clocked out
before traveling to the hospital, that the swiping mechanism is down the right-
hand side of the time clock, her time card was in her lunch box, and she used
her left hand to remove her time card and clock out. She stated that she had
previously had a valid prescription for Lortab, and that she did not want
Fromme to know she had been taking Lortab because she cared about what he
thought of her. Matheis further testified that the trip from Best Chairs to her
residence took about ten minutes, the trip from Best Chairs to the emergency
room also took about ten minutes, that she left Best Chairs at about 2:45 p.m.
and registered at the hospital at 2:57 p.m., and that she did not stop at home
first and cut off her thumb.
[6] Fromme testified that, on the night of January 21, 2015, he learned that
Matheis had indicated that she injured herself at work and reported that fact to
Joe Ficker, the division manager, and Margi Gilmore, the health environmental
safety manager. He testified that he told Ficker that Matheis had cut her finger
off at work, and Ficker wanted to know who Fromme called and what he was
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going to do. Fromme stated he then called Gilmore and reported that he heard
Matheis had cut her finger off at work, she asked what he was going to do, and
he said he was going to go to the workplace to see if he could find anything.
Fromme traveled to the plant, arriving between 9:00 and 9:30 p.m., and looked
for blood but did not see any. Fromme also indicated there was a meeting at
the plant on January 22, 2015, at which he, Ficker, Gilmore, and Kelly were
among those present for some or all of the time, that Gilmore called and ran the
meeting, and that there was discussion of the report that Matheis had stated she
cut her thumb off at work. When asked if there was an investigation by the
worker’s compensation insurance company, Fromme answered “[n]o, not that
I’m aware of.” Id. at 78.
[7] Kelly testified that she saw Matheis after the break right outside the restrooms
and that Matheis stated she was not feeling well and asked her to tell Peggy she
was not feeling well. Kelly indicated she relayed the message to Peggy. Kelly
further indicated that she later spoke to Matheis on the phone, that Matheis
said she had lost her thumb, and that Matheis said at one point that it occurred
at work and another point said it occurred at home. When asked “[h]ow was
her voice when she asked you to tell Peggy” and “[w]as she screaming or was
her voice quivering in any way,” Kelly answered “[a] little bit.” Id. at 97.
[8] On May 16, 2016, the single hearing member found that Matheis “suffered the
laceration and amputation of her right thumb at work and that it arose out of
her employment.” Appellant’s Appendix Volume II at 5. The single hearing
member found that Matheis lied to personnel at Best Chairs and at medical
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treatment locations because she feared termination; her fears flowed not from a
belief she would be terminated because she was injured at work but because
drug testing would reveal she was taking Lortabs that were not prescribed to
her; and that she testified the injury occurred at approximately 2:40 p.m. The
hearing member also found that she went to Memorial Hospital and Health
Care Center in Jasper which is ten minutes from her work and registered for
treatment at 2:57 p.m.; “[t]his renders it unlikely that [Matheis’s] lie about the
injury occurring at home could be true”; and Matheis testified she was aware
“that IMed was the facility” where Best Chairs sent injured workers for care
and she intentionally chose not to go there because she feared the drug testing.
Id.
[9] The single hearing member’s decision then stated that “the more difficult
question in this case is whether [Best Chairs] should be held liable for the
medical expenses incurred by [Matheis] in the face of her choice to pursue
treatment outside of that she knew to be [Best Chairs’] preferred caregiver
because she feared the results of the drug testing.” Id. at 6. The single hearing
member’s decision then set forth Ind. Code § 22-3-3-4(d) and found that “[t]he
need for treatment was clearly an ‘emergency’ (a thumb amputated by a band
saw at work) but the need to choose her own care was not brought about by the
emergency,” that “[e]ven considering the state of mind which would normally
attend such a shocking event, the Single Hearing Member is not inclined to
remove from [Matheis] the consequence of her choice,” and Matheis “retained
the presence of mind to consider the impact of her drug use on her
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employment.” Id. The hearing member concluded that Best Chairs is not liable
for the care provided at Memorial Hospital and Health Care Center.
[10] The hearing member went on to find:
The medical record reveals that the care for [Matheis’s]
amputated thumb was not available in Jasper and she therefore
had to be transported to Louisville for that specialty care. The
Single Hearing Member is only barely persuaded that other good
reason exists, therefore, for the provision of that care outside of
[Best Chairs’] provision of it by way of the transportation to and
treatment at Jewish Hospital in Louisville.
Id. The single hearing member found that Matheis began other employment on
April 1, 2015, and is entitled to temporary total disability benefits for the period
of January 22, 2015 until April 1, 2015, and an award for her permanent partial
impairment of twelve degrees.
[11] Best Chairs filed an application for review by the full Board, the Board
unanimously affirmed and adopted the decision of the single hearing member,
and Best Chairs now appeals.
Discussion
[12] The issue is whether the Board erred in affirming the decision of the single
hearing member. 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. Christopher R. Brown, D.D.S., Inc. v. Decatur Cty. Mem’l Hosp., 892
N.E.2d 642, 646 (Ind. 2008). We examine the record only to determine
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whether there is any substantial evidence and reasonable inferences that can be
drawn therefrom to support the Board’s findings and conclusion. Id. 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 the given area. Id. The
Board will be reversed only if it incorrectly interpreted the Worker’s
Compensation Act (the “Act”). Id. The Board has a duty to issue findings that
reveal its analysis of the evidence and that are specific enough to permit
intelligent review of its decision. Perkins v. Jayco, 905 N.E.2d 1085, 1088 (Ind.
Ct. App. 2009). We will not reweigh the evidence or assess witness credibility.
Id. When reviewing a negative judgment, we will not disturb the Board’s
findings of fact unless we conclude that the evidence is undisputed and leads
inescapably to a contrary result, considering only the evidence that tends to
support the Board’s determination together with any uncontradicted adverse
evidence. Id. We will construe the Act liberally in favor of the employee. Id.
[13] Best Chairs argues there were no signs of blood found after the alleged
occurrence and that Matheis did not tell anyone she was injured, walked to the
restroom, did not tell Kelly she was injured, retrieved her lunch box, swiped her
identification card down the right side of the time clock, and told medical
providers that her injury happened at home. It argues that, because the Board
made no findings on these topics and disputes, the evidence was insufficient to
sustain the award. Best Chairs further asserts that, even if Matheis was injured
at work, it should not be required to pay for her medical treatment and
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transportation because the treatment was not sought because of an emergency
or for any other good reason under Ind. Code § 22-3-3-4(d). It contends that
“any emergency in obtaining treatment was removed once Matheis arrived at
Jasper Memorial” and that the circumstances did not satisfy the “other good
reason” language of the statute because Matheis acted in bad faith. Appellant’s
Brief at 21-22. It also asserts that Matheis stated in her deposition that she had
not taken Lortab for probably a week before the accident and that it should be
allowed to develop and present an intoxication defense to the Board at a
hearing.
[14] Matheis argues that she suffered a traumatic injury at work, the Board’s
findings are supported by the testimony and medical records, the Board
correctly found she suffered injury by accident arising out of and in the course
of employment, and Best Chairs’ attack on the sufficiency of the Board’s
findings is simply an invitation for us to reweigh the evidence. Matheis further
maintains that it is difficult to imagine how such a traumatic event could not be
considered an emergency and that Best Chairs raised the issue of an
intoxication defense before the Board and there is no evidence of intoxication in
the record.
[15] The Act provides for compensation of injury or death by accident arising out of
and in the course of employment. Ind. Code § 22-3-2-2; Wright Tree Service v.
Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009), trans. denied. The
claimant bears the burden of proving the right to compensation. Wright Tree
Service, 907 N.E.2d at 186. “As a general rule, the issue of whether an
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employee’s injury or death arose out of and in the course of his or her
employment is a question of fact to be determined by the Board.” Id. at 186-
187 (citation omitted). “To ‘arise out of’ employment and therefore be
compensable, there must be a causal connection between the injury and the
worker’s employment.” Global Const., Inc. v. March, 813 N.E.2d 1163,
1168 (Ind. 2004) (citing Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003)). See
Wine-Settergren v. Lamey, 716 N.E.2d 381, 389 (Ind. 1999) (providing the “nexus
is established when a reasonably prudent person considers the injury to be born
out of a risk incidental to the employment, or when the facts indicate a
connection between the injury and the circumstances under which the
employment occurs”).
[16] The risks incidental to employment fall into three categories: (1) risks distinctly
associated with employment; (2) risks personal to the claimant; and (3) risks
neither distinctly of employment nor distinctly personal in character. Milledge,
784 N.E.2d at 930. “Risks that fall within categories numbered one and three
are generally covered under the [Act].” Id. However, risks personal to the
claimant, those “caused by a pre-existing illness or condition unrelated to
employment,” are not compensable. Id. (citation omitted). “Risks in category
number one are those we intuitively think of as work connected.” Id. This
category includes “[a]ll the things that can go wrong around a modern factory,
mill, mine, transportation system, or construction project . . . and constitute the
bulk of what not only the public but perhaps also the original drafters of
compensation acts had in mind as their proper concern.” Id. (citing 1 Arthur
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Larson & Lex K. Larson, LARSON’S WORKERS’ COMPENSATION LAW, § 4.01,
at 4-1–4-2 (2002); Mid-West Box Co. v. Hazzard, 195 Ind. 608, 146 N.E. 420, 420-
421 (1925) (employee’s finger severed while operating machinery)).
[17] Here, the single hearing member and Board found that Matheis “suffered the
laceration and amputation of her right thumb at work and that it arose out of
her employment.” Appellant’s Appendix Volume II at 5. Matheis testified that
she cut her right thumb off on January 21, 2015, using a band saw at Best
Chairs, and that, after she returned from a work break at approximately 2:40
p.m., she took some scrap to cut on the band saw and, as she leaned over to
shut the machine off, noticed that she had sustained a laceration to her right
thumb. Fromme testified that Matheis clocked out at 2:46 p.m. and the
hospital’s records indicate that Matheis was registered at 2:57 p.m. Matheis
testified she went straight to the emergency room at Memorial Hospital and
Health Care Center in Jasper. When asked on cross-examination, “[s]o, after
you got your lunch box, you removed your card from the lunch box with your
left hand,” Matheis responded affirmatively, and when asked “[a]nd then you
reached across the time sheet and swiped it,” she answered “[y]es.” Transcript
at 50. When asked “[w]hy did you take the time to do all of that,” she
answered “I don’t know.” Id. When asked if she left any blood on the time
card, she answered that she did not think so, and when asked if she left blood in
the area where she picked up her lunch box, she replied that she did not know.
When asked on redirect examination “[d]id you stop at home and cut off your
thumb first,” Matheis answered “[n]o,” and when asked “[d]id you bite it off in
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the car on the way there,” she again answered “[n]o.” Id. at 62. She again
indicated she “cut it off with a bandsaw at work.” Id.
[18] Our review of the findings and conclusions of the single hearing member and
Board and the evidence in the record does not convince us that the evidence
leads inescapably to the conclusion opposite that reached by the Board. The
single hearing member was able to assess the credibility of Matheis and the
other witnesses and to consider the impact of the testimony regarding the lack
of the presence of blood, the fact Matheis retrieved her lunch box and clocked
out before traveling to the hospital, and the fact she reported at the hospital that
the injury occurred at home. The single hearing member’s decision included
findings regarding the approximate time Matheis sustained her injury and the
time she registered for treatment at the hospital and specifically found that
“[t]his renders it unlikely that [Matheis’s] lie about the injury occurring at home
could be true.” Appellant’s Appendix Volume II at 5. We cannot say that the
lack of additional, particular, or more specific findings by the single hearing
member or Board regarding the lack of blood or Matheis’s actions to clock out
warrants reversal or remand. Based upon the record, we conclude substantial
evidence and reasonable inferences that can be drawn from the evidence exist to
support the determination that Matheis’s injury arose out of and in the course
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of her employment and that the findings of the single hearing member and
Board were not inadequate in this respect.4
[19] As for Best Chairs’ argument that the treatment was not sought because of an
emergency or for any other good reason, Ind. Code § 22-3-3-4(d) provides:
If, because of an emergency, or because of the employer’s failure
to provide an attending physician or services and products, or
treatment by spiritual means or prayer, as required by this
section, or because of any other good reason, a physician other
than that provided by the employer treats the injured employee
during the period of the employee’s temporary total disability, or
necessary and proper services and products are procured within
the period, the reasonable cost of those services and products
4
To the extent Best Chairs argues it should be allowed to develop an intoxication defense, we note that
Matheis testified she had taken Lortab on the morning of the accident for her shoulder, she took a half of one
at a time, she had previously been prescribed Lortab, and that it did not affect her vision, balance, “judgment
as far as how far this is from there,” or ability to work or drive. Transcript at 13. Matheis’s previous
deposition, in which she had stated she had taken Lortab “[p]robably the week before,” and portions of Best
Chairs’ employee handbook were admitted into evidence. Exhibits at 14. On cross-examination Best Chairs’
counsel questioned Matheis regarding the provisions of the employee handbook related to prescription
medications, where she obtained the Lortab, the fact she had previously used Lortab with a valid
prescription, that when she did so the Lortab came with a warning not to operate machinery, and that
Matheis did not know the dosage or how potent the pill she purchased off the street may be. The drug and
alcohol testing policy set forth in the employee manual provides in part that employees are subject to drug
testing in the event of a physical injury to the employee; that, if compelling circumstances exist which prevent
an immediate report from being made, the report must be made as soon as possible and no later than twelve
hours after the accident occurred; and “[i]f an employee is involved in a reportable accident, he/she will be
asked to submit to drug and alcohol testing as soon as possible but no later than 32 hours after the accident.”
Exhibits at 23. We also observe that Matheis’s injury occurred at about 2:40 p.m. on January 21, 2015, that
Fromme’s testimony reveals he informed Ficker and Gilmore of the injury prior to 9:00 or 9:30 p.m. that day,
that there was a meeting on January 22, 2015, at which the report of Matheis’s injury was discussed, and that
Best Chairs does not point to evidence that it asked Matheis to submit to a drug test within thirty-two hours
after the accident. We cannot say the single hearing member or Board was required to find that Matheis’s
injury did not arise out of and in the course of her employment due to her use of Lortab or that the Board
was required to grant Best Chairs’ request to introduce additional evidence.
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shall, subject to the approval of the worker’s compensation
board, be paid by the employer.
The Indiana Supreme Court, in discussing the existence of good reason under
the statute, has stated:
[I]f the employee, without authorization but in good faith,
obtains medical treatment different from that provided by the
employer, and it is determined that the treatment provided by the
employer was inadequate treatment for the employee’s condition
and the unauthorized treatment received by the claimant was
medically reasonable and necessary treatment, the employer
should be responsible, notwithstanding the lack of prior approval
by the employer.
Daugherty v. Indus. Contracting & Erecting, 802 N.E.2d 912, 918 (Ind. 2004)
(quoting Shenandoah Prods., Inc. v. Whitlock, 421 S.E.2d 483, 486 (Va. Ct. App.
1992)).
[20] The single hearing member and Board found that Best Chairs was not liable for
Matheis’s care provided at Memorial Hospital and Health Care Center. The
single hearing member’s decision went on to find, however, that “[t]he medical
record reveals that the care for [Matheis’s] amputated thumb was not available
in Jasper and she therefore had to be transported to Louisville for that specialty
care” and that “[t]he Single Hearing Member is only barely persuaded that
other good reason exists, therefore, for the provision of that care outside of
[Best Chairs’] provision of it by way of the transportation to and treatment at
Jewish Hospital in Louisville.” Appellant’s Appendix Volume II at 6. The
record reveals Matheis’s testimony that she sustained the laceration to her
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thumb after she returned to work from a break at approximately 2:40 p.m., she
clocked out at 2:46 p.m., she drove herself to Memorial Hospital and Health
Care Center in Jasper, and the hospital’s records indicate that Matheis was
registered at 2:57 p.m. Matheis testified that, when she arrived at the hospital,
her thumb “was hanging by a little piece of the skin” and “[t]hey cut it off when
I got to Jasper and they put it on ice.” Transcript at 127-128. She indicated
they placed her thumb “on ice and sent [her] and [her] thumb to Louisville”
where doctors “tried to reattach the whole thumb” but “it died before it
worked.” Id. at 128. When asked “what did they do for you at the hospital in
Jasper,” Matheis testified “[t]hey said they couldn’t do anything there and had
to send me to Louisville” and that she was flown to Louisville by helicopter. Id.
at 22.
[21] The contents of the medical records admitted into evidence are consistent with
Matheis’s testimony. Medical records from Memorial Hospital and Health
Care Center in Jasper dated January 21, 2015, stated: “Right thumb: complete
amputation present . . . . The thumb is hanging by a small skin bridge. The tip
is insenate and without blood flow . . . .” Exhibits at 49. The records further
stated: “Course of Care: . . . the amputation was completed and thumb was
prepared for transport. The patient was sent by air ambulance to the hand
surgeons in Louisville Kentucky.” Id. The medical records from Jewish
Hospital in Louisville stated that Matheis had been “transferred via helicopter
for possible replantation of the right thumb,” that she had “moderate active
bleeding PTA per flight crew,” and that she was transitioned to the operating
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room. Id. at 56, 61. An operative report indicated an operative procedure of
“[r]eplantation right thumb at interphalangeal joint,” the date of the procedure
of January 21, 2015, and the operate time was “18:51 to 1:50.” Id. at 64.
Subsequent records stated that the replantation failed and that Matheis
underwent a procedure on January 26, 2015, for “[r]evision amputation at the
interphalangeal joint level.” Id. at 73.
[22] We cannot say, based on the evidence and in light of our deferential standard of
review and that we construe the Act liberally in favor of the employee, that the
single hearing member and Board were not permitted to infer from the evidence
that the medical treatment available at IMed was inadequate for Matheis’s
condition and that the treatment received by Matheis at Jewish Hospital was
medically reasonable and necessary. Substantial evidence and reasonable
inferences there from exist to support the Board’s finding that care for Matheis’s
thumb was not available in Jasper and she had to be transported to Louisville
for that specialty care and thus that other good reason existed for the provision
of that care. We do not disturb the findings or the determination of the Board.
Conclusion
[23] For the foregoing reasons, the judgment of the Board is affirmed.
[24] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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