Ameristar Casino v. Margaret Romero (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 3, 2018
• Docket: 17A-EX-3053
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 03 2018, 9:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE John H. Halstead Jeffrey Sturm Kightlinger & Gray, LLP George C. Patrick & Associates Merrillville, Indiana Crown Point, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ameristar Casino, July 3, 2018 Appellant-Defendant, Court of Appeals Case No. 17A-EX-3053 v. Appeal from the Worker’s Compensation Board of Indiana Margaret Romero, The Honorable Linda Peterson Appellee-Plaintiff. Hamilton, Chairperson Application No. C-230740

Najam, Judge.

Statement of the Case [1] Ameristar Casino (“Ameristar”) appeals the decision of the Worker’s

Compensation Board (“the Board”) in which the Board determined that

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 1 of 12 Margaret Romero was entitled to worker’s compensation benefits for injuries

she sustained while working for Ameristar. Ameristar raises the following three

issues for our review:

1. Whether the Board erred when it relied on a vocational report prepared by Romero’s expert.

2. Whether the Board erred when it found that Romero could no longer maintain reasonable employment.

3. Whether the Board erred when it calculated Romero’s combined permanent partial impairment rating.

And Romero raises the following issue:

4. Whether we should increase her award by 10%.

[2] We affirm the judgment of the Board and agree with Romero’s request to

increase her award by 10%.

Facts and Procedural History [3] On June 9, 2014, Romero was injured in the course and scope of her

employment with Ameristar. In particular, as a result of a slip and fall, Romero

injured her neck, back, and right shoulder. Ameristar acknowledged that

Romero had suffered a compensable, work-related injury, and it paid her

temporary total disability benefits.

[4] Thereafter, Romero filed an application for worker’s compensation benefits,

and a Single Hearing Member held a fact-finding hearing on her claim. Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 2 of 12 Following that hearing, the Single Hearing Member entered findings of fact and

conclusions thereon for Romero. Ameristar appealed that decision to the full

Board, and the Board in turn entered the following findings of fact:

1. On October 26, 2016, Dr. Gregory McComis provided the Board with an independent medical evaluation of Plaintiff and concluded her injuries of June 9, 2014, were work related and entitled her to authorized treatment.

2. Thereafter, Dr. [Nitin] Khanna provided Plaintiff with authorized treatment, found her at maximum medical improvement (MMI) and evaluated her for impairment.

3. Dr. Khanna provided authorized treatment and gave Plaintiff a 9% whole person permanent partial impairment (PPI) rating for her cervical spine fusion.

4. Dr. Khanna provided authorized treatment and gave Plaintiff a 12% PPI rating for the whole person for her lumbar spine fusion.

5. On June 29, 2015, Dr. Khanna combined these two PPI ratings to provide Plaintiff with a 21% PPI of the whole person for her lumbar and cervical spine injuries.

6. Subsequently, Dr. [Sunil] Dedhia provided Plaintiff with authorized treatment for her shoulder injury only, and not for her lumbar spine and cervical spine injuries.

7. In the course of treatment, Dr. Dedhia concluded Plaintiff was in need of physical therapy for her condition, stating he expected her to be at MMI . . . in the range of six to nine . . . months.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 3 of 12 8. On August 17, 2016, Plaintiff began physical therapy with Athletico.

9. On November 10, 2016, Dr. Dedhia found Plaintiff at [MMI] and gave Plaintiff a 12% PPI rating for her right shoulder for a full thickness rotator cuff tear and tear of the biceps tendon.

10. Dr. Dedhia converted that into a whole person PPI rating of 7% for her shoulder, which is in addition to the previous finding of a 21% whole person rating for her lumbar and cervical spine injuries.

11. Defendant has stipulated that Plaintiff’s cervical fusion, lumbar fusion, rotator cuff tear, and bicep tear are compensable injuries.

12. The combined whole person PPI rating given to Plaintiff by Dr. Khanna and Dr. Dedhia is 28% for her lumbar spine, cervical spine[,] and shoulder injuries.

13. Plaintiff filed [her functional capacity evaluation (“FCE”)] report by Thomas Roundtree on August 17, 2016, two days after he had prepared it.

14. Thomas Roundtree concluded Plaintiff was permanently and totally disabled, unable to sustain any reasonable employment in the labor market.

15. Defendant filed its report by Thomas Grzesik in the afternoon on the day prior to final hearing on June 15, 2017.

16. Defendant had previously been given additional time to obtain a FCE report on the date previously set for final hearing on April 27, 2017. Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 4 of 12 17. Based upon Thomas Roundtree’s report filed on August 17, 2016[,] and Dr. Khanna’s notation in his report of April 8, 2015, that Plaintiff “cannot work,” this matter has long been considered to have the potential to result in a [permanent total disability (“PTD”)] award.

18. At the time of Thomas Roundtree’s FCE report, Plaintiff was 52 years old.

19. Plaintiff was a bartender for Defendant at the time she was injured.

20. Plaintiff provided credible, detailed descriptions of her limitations during her deposition testimony.

Appellant’s App. Vol. 2 at 8-10. The Board then made the following relevant

conclusions:

3. Vocational evidence submitted to the Board by Tom Roundtree is credible, and it is determined that Plaintiff is permanently and totally disabled under the [Worker’s Compensation] Act.

4. Plaintiff is not able to engage in any type of reasonable gainful employment and is entitled to PTD compensation for five hundred (500) weeks at Defendant’s expense from the date of her injury.

***

7. Defendant is responsible for all prior medical treatment which may be unpaid and for any future palliative care.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 5 of 12 8. Plaintiff’s attorney is entitled to a fee of 10% of any medical bills which may remain unpaid and on the cost of any palliative care to be rendered.

Id. at 10-11. This appeal ensued.

Discussion and Decision Standard of Review

[5] When reviewing the decisions of the Board, we are 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. Eads v. Perry Twp.

Fire Dep’t, 817 N.E.2d 263, 265 (Ind. Ct. App. 2004), trans. denied.

Additionally, all unfavorable evidence must be disregarded in favor of an

examination of only that evidence and the reasonable inferences therefrom that

support the Board’s findings. Id. And we neither reweigh the evidence nor

judge witness credibility. Id. We will not disturb the Board’s conclusions

unless the Board incorrectly interpreted the Worker’s Compensation Act.

Inland Steel Co. v. Pavlinac, 865 N.E.2d 690, 697 (Ind. Ct. App. 2007).

Issue One: The Board’s Reliance on Roundtree’s Report

[6] On appeal, Ameristar asserts not only that the Board erred but, more

specifically, that the Board “committed legal error” when it relied on

Roundtree’s report in that Roundtree prepared his report in August of 2016, but

Romero was not found to have reached her MMI until November of 2016.

Thus, Ameristar contends that the report was “unreliable and premature”

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 6 of 12 because it was completed “before Romero had finished treatment or reached

maximum medical improvement.” Appellant’s Br. at 11. For the same

reasons, Ameristar also contends that Roundtree’s report was “not competent

evidence.” Id. In sum, Ameristar alleges categorically that the Board erred

when it considered the conclusion in Roundtree’s report that Romero was

“unable to engage in any type of reasonable gainful employment” and was

“permanently and totally disabled.” Appellant’s App. Vol 2 at 11, 26.

[7] Ameristar’s arguments on this issue would merit consideration on appeal were

it not for the well-established rules of appellate review which apply to this

record and preclude such consideration. First, Ameristar stipulated to the

admission of Roundtree’s report without limitation. Ex. Vol. at 3. Thus, it has

waived its challenge to the competency of that report for our review. A

challenge to the competency of proffered evidence goes to the admissibility of

that evidence and must be raised to the tribunal where the evidence is offered.

See, e.g., Ind. Evidence Rules 103(a), 104(a); see also Tucker v. Harrison, 973

N.E.2d 46, 51-52 (Ind. Ct. App. 2012) (stating that admissibility of evidence

requires “a requisite showing of competency”), trans. denied. It is axiomatic that

such a challenge cannot be raised for the first time on appeal. E.g., Ind. Mich.

Power Co. v. Roush, 706 N.E.2d 1110, 1115 n.4 (Ind. Ct. App. 1999), trans.

denied.

[8] Second, even if Ameristar’s contention on appeal that the report was “not

competent evidence” were true, by stipulating to the report’s admissibility

Ameristar invited the error, if any, in the Board’s reliance on that report.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 7 of 12 Invited error is not subject to appellate review. E.g., Brewington v. State, 7

N.E.3d 946, 975 (Ind. 2014).

[9] Third, and likewise, “[i]ncompetent evidence may support the Board’s findings

where there is no objection.” Neidige v. Cracker Barrel, 719 N.E.2d 441, 444

(Ind. Ct. App. 1999) (citing C.T.S. Corp. v. Schoulton, 270 Ind. 34, 383 N.E.2d

293, 297 (1978)). Thus, even if Roundtree’s report were improperly admitted,

which it was not, “[i]t is the rule in Indiana that where incompetent evidence

has been admitted without objection or exception it may be considered upon

appeal in determining the sufficiency of the evidence notwithstanding it should

have been excluded upon proper and timely objection.” Hinshaw v. Waddell,

128 Ind. App. 67, 142 N.E.2d 640, 643 (1957). As such, after having stipulated

to the admission of Roundtree’s report, Ameristar’s arguments on appeal that

we should disregard Roundtree’s report on the maximum-medical-

improvement issue and rely instead upon the reports of Ameristar’s experts—as

if Roundtree’s report were not in the record—is untenable as a matter of

appellate procedure and contrary to law.

[10] Ameristar did not dispute Roundtree’s assessment with its own vocational

rehabilitation assessment until the day before the fact-finding hearing. Thus,

both the Single Hearing Member and the Board discounted Ameristar’s

evidence based on the fact that Romero had not been able to subject it to

adversarial testing. Moreover, on appeal, Ameristar presents no argument

supported by cogent reasoning that the timing of Roundtree’s report goes to the

admissibility of the report rather than to its weight. See App. R. 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 8 of 12 For all of those reasons, we decline to consider Ameristar’s arguments on this

issue.

Issue Two: Whether Romero Could Maintain Reasonable Employment

[11] Ameristar next asserts that “[t]he unopposed evidence shows that Romero

could maintain reasonable employment once she finished medical treatment

and reached maximum medical improvement in November 2016.” Appellant’s

Br. at 12. Ameristar’s arguments on this issue are predicated on this Court’s

agreement with Ameristar on Issue One. That is, Ameristar’s arguments here

are not merely an argument regarding the sufficiency of the evidence. Rather,

Ameristar contends that Roundtree’s report should be entirely disregarded on

the issue of maximum medical improvement. Ameristar asserts that, if this

Court would merely exclude Roundtree’s report on the MMI issue, we would

“not need to reweigh any evidence” because the “undisputed, competent

evidence” from Ameristar’s experts requires a conclusion in favor of Ameristar,

a conclusion contrary to that reached by the Board. Id. at 9, 12. However, as

explained above, we do not consider Ameristar’s arguments under Issue One in

that Ameristar stipulated to the admission of Roundtree’s report and, thus, did

not preserve its objection to the competency of that report for our review.

[12] Further, as previously noted, it was Roundtree’s opinion that Romero was

“permanently and totally disabled” and “unable to engage in any type of

reasonable gainful employment.” Appellant’s App. Vol. 2 at 11, 26. And the

Board concluded that Roundtree’s vocational evidence “is credible.” Id. at 10.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 9 of 12 Thus, Ameristar’s argument that this Court adopt a contrary conclusion to that

of the Board based on the reports of Ameristar’s experts is merely a request for

this Court to reweigh the evidence, which we will not do. We reject

Ameristar’s arguments on this issue.

Issue Three: The Board’s Calculation of Romero’s Combined PPI Rating

[13] Ameristar next asserts that the Board erroneously calculated Romero’s

combined PPI rating of 28%. To arrive at Romero’s combined PPI rating, the

Board added Dr. Khanna’s assessment that Romero’s cervical injury resulted in

a 9% whole person PPI rating, Dr. Khanna’s assessment that Romero’s lumbar

injury resulted in a 12% whole person PPI rating, and Dr. Dedhia’s assessment

that Romero’s shoulder injury resulted in a 7% whole person rating. According

to Ameristar, “that combined rating is incorrect under the AMA Guides to the

Evaluation of Permanent Impairment.” Appellant’s Br. at 13.

[14] Again, Ameristar has not preserved this issue for our review as it did not raise

this issue before the Board. And this was not a finding that Ameristar did not

expect from the Board; the parties expressly stipulated before the fact-finding

hearing that whether Romero was “entitled to any permanent partial

impairment rating” and, “[i]f so, how much,” were issues for the Board to

resolve. Ex. Vol. at 3. Yet Ameristar did not argue or suggest to the Board that

AMA guidelines were relevant to resolve those questions or, for that matter,

that the Board lacked discretion to deviate from those guidelines. As such, we

will not consider Ameristar’s arguments for the first time on appeal.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 10 of 12 Issue Four: Whether We Will Increase Romero’s Award by 10%

[15] Finally, Romero argues on appeal that this Court should increase her award by

10%. According to Indiana Code Section 22-3-4-8(f) (2017): “An award of the

full board affirmed on appeal, by the employer, shall be increased by five

percent (5%), and by order of the court may be increased ten percent (10%).”

An order to increase the award by ten percent is not warranted unless the issues

presented upon appeal are frivolous, appellate review is thwarted by the

employer’s actions, or there has been an extended period of time within which

the injured worker has been prevented from obtaining worker’s compensation

benefits. Inland Steel Co., 865 N.E.2d at 703.

[16] Romero has not demonstrated either that Ameristar’s actions have thwarted

appellate review or that she has been prevented from obtaining worker’s

compensation benefits for an extended period of time. Nevertheless, as

discussed in Issues One, Two, and Three, Ameristar’s arguments on appeal not

only lack merit but are not credible. Ameristar has prosecuted this appeal from

the Board’s decision notwithstanding its own procedural default, including

waiver and invited error. The doctrine of invited error precludes a party from

taking advantage of an error that he or she commits or invites. Prime Mortg.

USA, Inc. v. Nichols, 885 N.E.2d 628, 657 (Ind. Ct. App. 2008). As we have

already noted, invited error is not subject to appellate review. Brewington, 7

N.E.3d at 975. In any event, there was no error in the Board’s consideration of

the stipulated evidence that Ameristar disputes on appeal as “not competent

evidence.” See Neidige, 719 N.E.2d at 444. And Ameristar has also disregarded

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 11 of 12 the rule of substantive law that even incompetent evidence admitted without

objection may be considered upon appeal in determining the sufficiency of the

evidence. See Hinshaw, 142 N.E.2d at 643.

[17] We follow the logic of Ameristar’s argument in the abstract. But when that

argument is measured against the record, the notion that this court can simply

set aside evidence admitted by stipulation in order to accommodate Ameristar’s

legal theory is incompatible with appellate review. See Inland, 865 N.E.2d at

704 (holding award increase warranted where employer sought to have this

court go against our standard of review and presented issues that proved to be

disingenuous or trivial). This case presents an evidentiary dispute. We

conclude that Ameristar’s prosecution of this appeal is untenable as it is based

on arguments advanced in spite of the record, including its own stipulation

without limitation, and contrary to our standard of review, which requires that

we disregard all evidence unfavorable to the Board’s decision unless the

evidence is undisputed and leads inescapably to a result contrary to the Board’s.

See id. Therefore, we hold that it is appropriate to increase Romero’s award by

10%.

[18] In sum, we affirm the Board’s judgment for Romero and direct that Romero’s

award be increased by 10%.

[19] Affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 12 of 12