Daugherty v. Industrial Contracting & Erecting

765 N.E.2d 1280, 2002 Ind. App. LEXIS 589, 2002 WL 555059
CourtIndiana Court of Appeals
DecidedApril 16, 2002
Docket93A02-0110-EX-671
StatusPublished
Cited by2 cases

This text of 765 N.E.2d 1280 (Daugherty v. Industrial Contracting & Erecting) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daugherty v. Industrial Contracting & Erecting, 765 N.E.2d 1280, 2002 Ind. App. LEXIS 589, 2002 WL 555059 (Ind. Ct. App. 2002).

Opinions

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Barry Daugherty filed an application for adjustment of claim with the Workers Compensation Board of Indiana (the "Board") against his employer, Industrial Contracting and Erecting ("ICE"). A single hearing judge denied his claim, and Daugherty petitioned the full Board, which affirmed the single hearing judge's decision. Daugherty now appeals and presents the following restated issues for our review:

1. Whether the Board's denial of payment for Daugherty's knee replacement surgery and prospective treatment of that knee were supported by sufficient evidence.
2. Whether the Board's decision to credit ICE for worker's compensation benefits that it had already paid to Daugherty was supported by sufficient evidence.
3. Whether the Board stated its findings and conclusions with enough specificity to permit this court to adequately review the Board's decision.

We affirm.

FACTS AND PROCEDURAL HISTORY

On May 8, 1997, Barry Daugherty was working as a laborer for ICE when he fell [1282]*1282off the "fork truck tarping machine" on which he was standing and tumbled about fifteen feet to the ground. As he fell, Daugherty hit his right knee on a protruding steel rail, causing severe injury. Daugherty could not return to work, so ICE paid Daugherty worker's compensation benefits, for what doctors determined was a temporary total disability, at a rate of $402.28 per week for approximately 30 weeks between August 1997 and March 1998.

On March 11, 1998, after overseeing Daugherty's care for several months, Dr. Robert C. Gregori issued a report stating that Daugherty suffered from some permanent disability and found that his knee injury had reached a quiescent state. He therefore assigned Daugherty a permanent partial impairment rating of ten percent (10%) of the right lower extremity. Based on this evaluation, ICE reduced Daugherty's disability payments to $225 per week. Because he was still experiencing significant pain, Daugherty requested that the Board appoint a physician to conduct an independent medical evaluation of his knee. Pursuant to this request, Dr. Frank Throop examined Daugherty and found that he suffered lingering pain in his knee, but that his injury had achieved its "maximum medical improvement."

Unhappy with these results, Daugherty privately consulted Dr. Peter Brooks, an orthopedic surgeon at Cleveland Clinic. Dr. Brooks concluded that Daugherty's persistent knee pain was the result of "degenerative change," and recommended that he undergo a "right total knee arthro-plasty." Daugherty did not report Dr. Brooks' recommendations to the Board nor did he get approval for the surgery from ICE. Nonetheless, Daugherty underwent the knee replacement surgery in October 1998, at Cleveland Clinic. Four months after the surgery, Daugherty returned to work and was able to eventually resume his normal job duties.

Shortly after his surgery, Daugherty filed an "application for adjustment of claim" with the Board. Following a hearing, a single judge awarded Daugherty $3,829.45 for his temporary total disability during the four months he spent recuperating from his knee replacement surgery. Against this amount, the Board credited ICE the $225 per week that it had paid in workers compensation benefits to Daugherty during that period. Daugherty was also awarded $3,875 for the permanent partial impairment of his right knee resulting from his injuries. However, because he underwent the knee replacement surgery without prior approval from ICE or the Board, the judge declined to award Daugherty the costs of his knee replacement surgery or any money for prospective care and treatment of his knee. Daugherty petitioned the full Board, which affirmed the single judge's decision. This appeal ensued.

DISCUSSION AND DECISION

Knee Replacement Surgery

Daugherty first contends that the Board's denial of payment for his knee replacement surgery and prospective treatment of that knee is not supported by sufficient evidence. We do not agree.

In reviewing a decision of the Board, we employ a two-tiered standard of review. Outlaw v. Erbrich Prod. Co., Inc., 742 N.E2d 526, 529 (Ind.Ct.App.2001). We will review the evidence in the record to see if there is any competent evidence of probative value to support the Board's findings and then examine the findings to see if they are sufficient to support the decision. Id. We will not reweigh the evidence or assess the credibility of witnesses. Id. Rather, we will consider only [1283]*1283the evidence most favorable to the award, including any and all reasonable inferences deductible from the proven facts. Id.

Pursuant to Indiana Code Section 22-3-3-4(d), an employee is generally not free to elect, at the employer's expense, additional treatment or other physicians than those tendered by the employer. K-Mart v. Morrison, 609 N.E.2d 17, 31 (Ind.Ct.App.1993), trans. denied. Nevertheless, the statute allows the employee to select independent medical treatment under three circumstances: (1) in an emergeney;1 (2) if the employer fails to provide needed medical care; or (8) for other good reason. Id.

Indiana Code Section 22-8-4-5(a) provides, in general, that should the employer and employee disagree about the amount of compensation owed, either party may submit an application to the board to resolve the dispute. More specifically, Indiana Code Section 22-8-3-4(b) states that:

During the period of temporary total disability resulting from the injury, the employer shall furnish the physician services, and supplies, and the [Board] may, on proper application of either party, require that treatment by the physician and services and supplies be furnished by or on behalf of the employer as the [Board] may deem reasonably necessary.

(Emphasis added).

Here, after several doctors had treated Daugherty, Dr. Gregori found that Daugherty's knee had reached a quiescent state. Dr. Throop, whom the Board appointed, agreed that Daugherty's injury had reached a state of maximum recovery. Daugherty disagreed with the assessment of his injury and sought the advice of Dr. Brooks, who recommended that he undergo a total knee replacement. While Daugherty relayed Dr. Brook's recommendation by phone to a representative from ICE's insurance carrier, he neither submitted that recommendation in writing to the insurance company nor to the Board. He nevertheless underwent the surgery without approval from ICE or a determination by the Board as to who should pay for the surgery. Indeed, the Board specifically found that the surgery "was clearly and definitively unauthorized by [ICE] and its workers compensation carrier at the time Daugherty chose to go forward with it." And while the surgery resulted in Daugherty being able to resume his normal work duties and the Board, albeit in hindsight, found that the surgery was "reasonable and appropriate," six other physicians who had treated Daugherty did not suggest that he undergo a knee replacement.

We agree with Daugherty's assertion that "[the mere refusal of an employer to pay for needed treatment does not as a matter of law resolve whether or not services should be provided and paid for by the employer." But that is not the case here.

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Related

Daugherty v. Industrial Contracting & Erecting
802 N.E.2d 912 (Indiana Supreme Court, 2004)
Daugherty v. Industrial Contracting & Erecting
765 N.E.2d 1280 (Indiana Court of Appeals, 2002)

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Bluebook (online)
765 N.E.2d 1280, 2002 Ind. App. LEXIS 589, 2002 WL 555059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daugherty-v-industrial-contracting-erecting-indctapp-2002.