MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 20 2020, 9:19 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David A. Kruse R. Jay Taylor, Jr. Kruse & Kruse P.C. Carla R. Hounshel Auburn, Indiana Scopelitis, Garvin, Light, Hanson & Feary, P.C. Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Kevin Arington, April 20, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-EX-1732 v. Appeal from the Indiana Worker’s Compensation Board Eaton’s Trucking Service, Inc., The Honorable Linda Peterson Appellee-Defendant, Hamilton, Chairman Application No. C-229754
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 1 of 24 Case Summary and Issues [1] James Arington appeals the decision of the Full Worker’s Compensation Board
(the “Board”) affirming the decision of a single hearing member who concluded
that Arington was ineligible for further worker’s compensation benefits. The
Board also denied Arington’s claims against his employer for bad faith and lack
of diligence, among other claims. This case presents several issues, which we
expand and restate as: 1) whether the Board erred in affirming the single
hearing member’s determination, 2) whether the evidence supports the Board’s
conclusion that Arington’s employer did not act in bad faith, and 3) whether the
employer is entitled to appellate attorney fees. We conclude that the Board
properly affirmed the single hearing member’s decision that Arington was
ineligible for further benefits and that Arington did not prove his employer
acted in bad faith. We also decline to award attorney fees to his employer.
Accordingly, we affirm.
Facts and Procedural History [2] Arington is an employee of Eaton’s Trucking Service, Inc. (“Eaton’s”).
Arington’s duties are to load semi-trucks from rail cars and drive the trucks to a
designated factory. This case arises from an injury Arington suffered on
November 11, 2014 in the course of his employment and the subsequent
Application for Adjustment of Claim he filed on July 24, 2015. Arington also
made claims against Eaton’s for lack of due diligence and bad faith, among
other claims. See Exhibits, Volume III at 5-6.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 2 of 24 [3] The relevant terms in this case are as follows:
• Temporary Total Disability (“TTD”) – TTD payments are made to
compensate an employee during the treatment period in which the
employee cannot return to work of the same kind and character as before
the injury. Platinum Constr. Grp., LLC v. Collings, 988 N.E.2d 1153, 1156-
57 (Ind. Ct. App. 2013).
• Functional Capacity Evaluation (“FCE”) – An FCE is conducted to
determine an employee’s capacity to perform work. See Exhibits, Vol. I at
91.
• Maximum Medical Improvement (“MMI”) – MMI occurs when an
injured employee reaches a state where his condition cannot be improved
any further. Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053, 1054 (Ind.
1996).
• Independent Medical Examination (“IME”) – The purpose of an IME is
to determine whether an employee’s work-related injury has reached
MMI. Appealed Order at 25.
• Permanent Partial Impairment (“PPI”) – A PPI rating is assessed after a
person has reached MMI such that the permanent impairment from the
injury can be determined. Stump Home Specialties Mfg. v. Miller, 843
N.E.2d 18, 22 (Ind. Ct. App. 2006).
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 3 of 24 [4] During the course of his treatment, Arington saw the following doctors, among
others:
• Dr. Thomas Lazoff – Dr. Lazoff specializes in pain management,
physical medicine & rehabilitation, and pain medicine. Eaton’s directed
Arington to receive treatment from Dr. Lazoff, who referred Arington to
Dr. Johnathan Norton.
• Dr. Johnathan Norton – Dr. Norton specializes in reconstructive foot
and ankle care. Arington visited Dr. Norton at the request of Dr. Lazoff.
• Dr. Shawn Kidder – Dr. Kidder is Arington’s primary care physician
who specializes in family medicine. Arington visited Dr. Kidder on his
own.
• Dr. Amanda Vujovich – Dr. Vujovich specializes in foot and ankle care.
Arington sought Dr. Vujovich’s opinion on his own.
• Dr. Michael Shea – Dr. Shea specializes in bone, joint, spine, and muscle
care. The Board appointed Dr. Shea to conduct the IME on Arington.
Dr. Shea recommended that Arington undergo an EMG.
• Dr. Mark Reecer – Dr. Reecer is an EMG specialist. Eaton’s initially
chose Dr. Reecer to perform the EMG on Arington.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 4 of 24 [5] On November 11, 2014, while loading a truck in the course of his employment,
Arington injured his right ankle.1 Although Arington reported immediate pain,
he did not go to the hospital until the next day. There, he was diagnosed with a
sprained right ankle. The clinic notes suggest that Arington may have rolled his
ankle a second time after the work injury. Reportedly, Arington has ongoing
personal conditions such as arthritis, spurs, and osteochondritis affecting both
of his ankles. Eaton’s had notice of Arington’s work injury and provided
medical and TTD benefits while he was off work and seeking treatment.
Arington received treatment from several medical providers for his work injury.
In December of 2014, Arington was examined by Dr. Lazoff at the request of
Eaton’s. Dr. Lazoff recommended that Arington undergo an MRI of his injured
right ankle. Arington’s MRI results revealed no fracture or significant tissue
abnormality; however, there were injuries to his ligaments. See Exhibits, Vol. I
at 51-52. Arington was restricted from commercial driving and advised to wear
an air cast boot. Dr. Lazoff then referred Arington to Dr. Norton, a foot and
ankle specialist.
[6] On January 7, 2015, Arington sought treatment from Dr. Norton. Dr. Norton
opined that surgery to Arington’s right ankle was not necessary despite his
partially torn ligaments because he did not suffer a complete tear of the deltoid.
Dr. Norton also restricted Arington from commercial driving but advised him
1 The fact that Arington was injured in the course of his employment is not disputed.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 5 of 24 that he could sit at work.2 Arington had a follow up with Dr. Norton in
February. At this time, Arington complained about pain in both ankles but Dr.
Norton advised Arington that his left ankle pain was not related to his work
injury. Dr. Norton also explained to Arington that his right ankle would never
be 100% no matter what treatment he receives. In the same month, Arington
had a follow up with Dr. Lazoff. He also indicated that Arington would not
likely have complete relief from his ankle injury given his chronic ankle
conditions and lack of improvement to date. Arington then returned to Dr.
Norton on March 3, 2015. Arington mentioned visiting “Dr. Hicks” from South
Bend, Indiana for treatment, but Dr. Norton was unable to locate a doctor by
that name; Dr. Norton believed that Arington was being misleading. Dr.
Norton then gave Arington an injection in his right ankle to relieve some of his
pain. Dr. Norton advised Arington that “most people would have already been
back to work with this problem.” Id. at 73.
[7] On March 4, Arington had a follow-up with Dr. Lazoff. Dr. Lazoff informed
him that there was no further treatment to offer and explained that it was
doubtful that surgical intervention would help; Dr. Lazoff recommended that
Arington undergo an FCE. Before Arington underwent the FCE, he sought
treatment from Dr. Kidder, his primary care physician, on March 13. Arington
told Dr. Kidder that he wanted to discontinue wearing his air cast boot.
Arington also told Dr. Kidder that he had collapsed after receiving the injection
2 The record is unclear if Arington returned to work on this restrictive basis.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 6 of 24 from Dr. Norton. Dr. Kidder opined that Arington’s injury required surgical
repair and that he would sustain 100% impairment to his right ankle without
surgery. On April 7, Arington followed up with Dr. Norton and mentioned that
he had collapsed from the injection. Dr. Norton consulted with Dr. Lazoff
regarding this issue and both concluded that the injection would not have
caused the side effects that Arington had reported.
[8] On April 14, Arington underwent the FCE recommended by Dr. Lazoff.
Although Arington stated that he was unable to perform work, the evaluator
noticed that Arington’s fingernails were “soiled and [he had] a fair amount of
callus formation . . . on both hands.” Id. at 144. The evaluation indicated that
Arington was “attempting to control the test results to demonstrate more pain
and disability than are actually present[.]” Id. at 151. Nonetheless, the
evaluation showed that Arington’s ankle “has returned to normal or near
normal function” and that he is able to work at medium physical demand for an
eight-hour day. Id. at 144.
[9] Arington continued to visit medical providers. On April 16, he sought treatment
from Dr. Douglas Bolda on his own. Dr. Bolda did not have a surgical
procedure that would help Arington’s ankle but recommended that Arington
seek treatment from Dr. Karr, a foot and ankle specialist. At a follow-up
appointment, Dr. Bolda asked Arington if he saw Dr. Karr; Arington responded
that he did not because his insurance would not allow him to see Dr. Karr.
Arington then said that he really did not want to see Dr. Karr because he had
seen Dr. Karr in the past.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 7 of 24 [10] On April 20, Arington had a follow-up appointment with Dr. Lazoff. At this
appointment, Dr. Lazoff reported to Arington that his work injury had reached
a point of MMI and that there was no permanent impairment to his right ankle
based on his FCE results. Arington submitted a letter to Eaton’s objecting to his
FCE results and claiming that the results were inaccurate because the evaluator
reported that he was not wearing his air cast boot. Nonetheless, in light of the
reports from Drs. Norton and Lazoff, the results of Arington’s FCE, and his
MMI status, Eaton’s notified Arington of its intent to terminate Arington’s
TTD benefits as of May 4, 2015. As of May 4, Eaton’s had paid a total of
$10,313.118 in TTD benefits to Arington.
[11] Arington then requested an IME pursuant to Indiana Code section 22-3-3-7 to
validate the opinions of Drs. Norton and Lazoff. The Board appointed Dr. Shea
to perform the IME to determine whether Arington had reached MMI. See id.,
Vol. IV at 59-60. Before undergoing the IME, Arington continued to visit
various doctors. Among those, Arington sought treatment from Dr. Vujovich, a
foot and ankle specialist. Arington indicated that he wanted surgery. However,
after examining Arington’s ankle injury, Dr. Vujovich advised against surgery.
[12] Arington then underwent the IME on July 6, 2015. Dr. Shea determined that
his injuries were fairly unremarkable. Dr. Shea averred that Arington had
received appropriate care to date, recommended an Electromyography
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 8 of 24 (“EMG”) test3 on his right ankle to rule out any peroneal nerve issues, and
opined that Arington was most likely at MMI if his EMG test was negative for
any peroneal nerve injury. See id., Vol. I at 166. Dr. Shea also reported:
At this point in time, I think he could return to just driving but I think he would have a little difficulty climbing up and down a semi cab, as well as he would have great difficulty loading and unloading, as well as doing any tarp or climbing on the semi. If it was just driving . . . I think it would be reasonable for him to return to that.
Id. In September of 2015, Arington had a follow-up with Dr. Vujovich who
issued a report disagreeing with Dr. Shea’s recommendation that Arington
should undergo an EMG test, explaining that her physical exam findings did
not show any signs of peroneal nerve injury. See id., Vol. II at 247. Dr. Kidder
issued a report agreeing with Dr. Vujovich’s assessment stating, “I entrust
[Arington’s] care to Dr. Vujovich as she specializes in this area . . . I do confer
with Dr. Vujovich’s plan of care.” Id., Vol. III at 69.
[13] Nevertheless, the Board instructed Eaton’s to schedule the EMG test by their
choice of physician. The nurse case manager (“NCM”)4 on the case then
3 An EMG is a test that checks muscle and nerve health. See Healthline, Electromyography, http://www.healthline.com/health/electromyography [https://perma.cc/C7PK-QPEZ]. 4 A NCM is a liaison between the medical providers, the employer, and the injured worker. The NCM’s role in worker’s compensation cases includes providing information and communication among the parties and medical providers, scheduling appointments, helping to facilitate care, and reporting back to the employer. See Worker’s Compensation Board of Indiana, Nurse Case Manager Guidelines, https://www.in.gov/wcb/2585.htm [https://perma.cc/3WG7-FXTZ].
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 9 of 24 assisted Eaton’s with arranging an EMG with Dr. Reecer to take place on
August 4. Arington submitted a letter to Eaton’s requesting a different doctor
because he previously had a dispute with Dr. Reecer. See id. at 18. Eaton’s,
however, declined and stated that it had “the right to direct medical treatment
under Indiana law.” Id., Vol. VI at 162. In any event, Arington attended the
appointment but refused to undergo the EMG. Arington believed that Dr. Shea
had examined his left ankle when recommending the EMG and wanted
confirmation that the EMG was for his right ankle before undergoing the EMG.
Despite multiple confirmations by Dr. Reecer that the EMG was for the right
ankle, Arington refused to undergo the test. An employee with Dr. Reecer’s
office characterized Arington’s behavior as “disruptive and belligerent.” Id.,
Vol. III at 93. Finally, Dr. Reecer told Arington that he would reschedule the
EMG and obtain a specific order from Dr. Shea confirming the test was to be
conducted on the right ankle, which Dr. Shea subsequently provided. Because
of Arington’s “refusal or obstruction” of the EMG, Eaton’s filed a notice to
suspend Arington’s medical benefits the same day. Id. at 7.
[14] Nonetheless, Eaton’s directed the NCM to reschedule the EMG with a different
doctor. The NCM then rescheduled the EMG test with Dr. Todd Graham.
Eaton’s informed Arington that if he failed to attend or refused to undergo the
EMG test his medical and TTD benefits would not be reinstated. However,
Arington filed an objection to the EMG test relying on the opinions of Drs.
Vujovich and Kidder claiming there was no peroneal nerve injury and therefore
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 10 of 24 an EMG was not medically warranted. The parties submitted the question of
whether an EMG was necessary to the Board.
[15] On December 1, a single hearing member of the Board held an interim hearing
on issues related to the IME. The single hearing member concluded that
Eaton’s did not wrongfully terminate TTD benefits and that the EMG test was
not required based on Arington’s contention that the right peroneal nerve injury
was ruled out as a work-related injury. See Appellant Appendix, Volume 2 at
56-57. Arington appealed to the Board for review and the Board affirmed the
single hearing member’s judgment on April 14, 2016.
[16] A hearing was held before a single hearing member of the Board on January 23,
2018 on Arington’s Application for Adjustment of Claim regarding medical
benefits and compensation. The single hearing member entered its findings of
fact and conclusions thereon on April 27. Pursuant to its findings and
conclusions, the single hearing member awarded Arington additional
compensation for TTD commencing on May 5, 2015 and ending on August 4,
2015 for a total of $5,448.68. The single hearing member also awarded
Arington compensation for 5% PPI for a total award of $2,654.75. Arington
appealed the decision to the Board. On October 4, 2018, the Board adopted and
affirmed the single hearing member’s decision. Arington’s remaining claims for
bad faith, lack of diligence, and independent torts pursuant to Indiana Code
section 22-3-4-12.1 went before the Board on April 30, 2019. The Board
concluded that Arington did not meet his burden of showing that Eaton’s acted
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 11 of 24 in bad faith, lacked due diligence, or committed independent torts. Arington
now appeals. Additional facts will be supplied as necessary.
Discussion and Decision I. Standard of Review [17] The Indiana Worker’s Compensation Act (“the Act”) provides compensation
for personal injury or death arising out of and in the course of employment.
Ind. Code § 22-3-2-2(a). Our supreme court has held that the Act is to be
liberally construed to “‘effectuate the humane purposes of the Act[.]’” Daugherty
v. Indus. Contracting & Erecting, 802 N.E.2d 912, 919 (Ind. 2004).
[18] Arington had the burden to prove a right to compensation under the Act. Bowles
v. Gen. Elec., 824 N.E.2d 769, 772 (Ind. Ct. App. 2005), trans. denied. As such,
he appeals from a negative judgment. In reviewing a negative judgment, 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. Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008),
trans. denied. We neither reweigh the evidence nor judge the credibility of the
witnesses. Kovatch v. A.M. Gen., 679 N.E.2d 940, 942-43 (Ind. Ct. App. 1997),
trans. denied. Instead, we examine the record only for substantial evidence and
reasonable inferences that can be drawn therefrom supporting the Board’s
findings and conclusions. Christopher R. Brown, D.D.S., Inc. v. Decatur Cty. Mem’l
Hosp., 892 N.E.2d 642, 646 (Ind. 2008). The Board has a duty to issue findings
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 12 of 24 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).
II. Termination of Worker’s Compensation Benefits [19] Arington contends that the Board erred in finding that his TTD benefits should
be terminated on August 4, 2015 because he still needed medical treatment after
that date. We disagree. When an employee is injured on the job, the employer
must furnish medical care to treat the worker’s injury. Ind. Code § 22-3-3-4(a).
If the injured worker does not have the ability to return to work of the same
kind or character during the treatment period for the injury, the worker is
temporarily totally disabled and may be entitled to benefits. Ballard v. Book
Heating & Cooling, Inc., 696 N.E.2d 55, 57 (Ind. Ct. App. 1998), trans. denied.
[20] Once the injury has reached a permanent and quiescent state, the treatment
period ends, and the extent of the permanent injury is assessed for
compensation purposes. Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 1233,
1239 (Ind. Ct. App. 2003). “The phrase ‘maximum medical improvement,’ also
designated ‘quiescence’ in the jargon of worker’s compensation, essentially
means that a worker has achieved the fullest reasonably expected recovery with
respect to a work related injury.” Perkins, 905 N.E.2d at 1088-89. However,
before an employer terminates TTD benefits, the employer must provide
written notice to the worker of its intent to discontinue benefits. Ind. Code § 22-
3-3-7(c). Indiana Code section 22-3-3-7(c) also provides in relevant part:
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 13 of 24 . . . If the employee disagrees with the proposed termination, the employee must give written notice of disagreement to the board and the employer within seven (7) days after receipt of the notice of intent to terminate benefits. . . . If the board is unable to resolve the disagreement within ten (10) days of receipt of the notice of disagreement, the board shall immediately arrange for an evaluation of the employee by an independent medical examiner. The independent medical examiner shall be selected by mutual agreement of the parties or, if the parties are unable to agree, appointed by the board under IC 22-3-4-11. If the independent medical examiner determines that the employee is no longer temporarily disabled or is still temporarily disabled but can return to employment that the employer has made available to the employee, or if the employee fails or refuses to appear for examination by the independent medical examiner, temporary total disability benefits may be terminated.
(Emphasis added.)
[21] Eaton’s contends that the Board’s decision that Arington’s TTD benefits should
terminate on August 4 was correct because his condition had reached MMI as
of that date. Eaton’s terminated Arington’s TTD benefits on May 4, 2015 based
on evidence that Arington’s injury had reached MMI. When Arington injured
himself, he did not go to the hospital until the next day, despite his report of
immediate pain. Instead, he continued to work. At the hospital, he was
diagnosed with having a sprained right ankle, but the clinic notes suggest that
Arington may have rolled his ankle a second time after the work injury
occurred. Nonetheless, Arington’s MRI results revealed no fracture or
significant tissue abnormality, although there were injuries to the ligaments of
his right ankle. At that time, Arington was advised only to wear an air cast
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 14 of 24 boot. Arington then sought treatment from Dr. Norton. Dr. Norton opined that
surgery was not necessary because Arington did not suffer a complete ligament
tear but restricted him to sit down work. Eventually, Dr. Norton explained to
Arington that he had no further treatment to offer him and agreed to see him on
an as-needed basis. Dr. Norton also opined that Arington should have been
able to return to work with his injury. Dr. Norton’s opinion was supported by
Arington’s FCE results that showed he was able to work at medium physical
demand for eight-hour days. The FCE test also suggested that Arington’s
injured right ankle had returned to normal or near normal function. After
seeing Arington on April 20, Dr. Lazoff reported to Eaton’s that Arington’s
condition had reached MMI and that Arington had sustained no permanent
impairment to his right ankle. Eaton’s then notified Arington it would be
terminating his TTD benefits as of May 4, 2015.
[22] Arington then requested a Board-appointed IME. After conducting Arington’s
IME, Dr. Shea had a similar report to that of Drs. Norton and Lazoff – that
Arington had appropriate care and that his injury was likely at MMI. Although
Dr. Shea believed that Arington would have difficulty loading his truck and
climbing up and down to get in and out of the cab, he reported that Arington
could still return to work but would be limited to only driving. However, Dr.
Shea still recommended an EMG to rule out any peroneal nerve injury, because
a negative result would confirm he was at MMI. Arington was scheduled for an
EMG on August 4, 2015 but refused to undergo the EMG on that date. It is at
this point that Eaton’s suspended Arington’s medical benefits because of
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 15 of 24 Arington’s refusal. Nonetheless, Eaton’s and the NCM arranged a second
EMG, but instead of undergoing the procedure, Arington conceded that
peroneal nerve injury was ruled out as a compensable consequence of his work
injury based on reports from Drs. Vujovich and Kidder.
[23] Arington’s own concession, the reports from Arington’s medical providers, and
Arington’s IME report support the inference that Arington’s injury had reached
MMI by August 4 at the latest and he could return to work. There were no
medical opinions by any foot and ankle specialist that surgery would be
advisable for Arington, despite his wishes. We do not discredit the magnitude
of Arington’s work injury. However, his continued pain was not only from his
work injury. Instead, his preexisting medical conditions, namely arthritis, spurs,
and osteochondritis, were also contributing factors for his pain as noted by
medical providers. Furthermore, Arington’s misrepresentations undermine his
credibility with respect to the severity of his injury. At one point, Arington
mentioned seeking treatment from “Dr. Hicks” from South Bend, Indiana, but
Dr. Norton was unable to locate a doctor by that name; Dr. Norton believed
Arington was being misleading. Dr. Norton also gave Arington an injection
which Arington claimed caused him to collapse. However, Drs. Norton and
Lazoff concluded that the injection would not have had that effect. Also, Dr.
Bolda asked Arington if he saw Dr. Karr as Dr. Bolda had suggested; Arington
responded that he did not because his insurance would not let him see Dr. Karr.
But then Arington changed his story and said that he really did not want to see
Dr. Karr because he had seen Dr. Karr in the past. Moreover, Arington claimed
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 16 of 24 that he had not been working but his FCE evaluator believed otherwise because
his fingernails were soiled and both hands had calluses. Arington’s FCE report
also indicated he was “attempting to control the test results to demonstrate
more pain and disability than are actually present.” Exhibits, Vol. I at 151.
Because of these misrepresentations, it is difficult to believe that Arington was
sincere in his representations as to the severity of his injury or his inability to
return to work.
[24] Although Arington argues that there is evidence in the record supporting his
need for additional medical treatment, his argument is simply an invitation for
us to reweigh the evidence and judge his credibility against that of the medical
providers, an invitation that we cannot accept. See Kovatch, 679 N.E.2d at 942-
43. Based on our review, there is sufficient evidence in the record to show that
Arington’s condition has reached MMI and thus, the Board did not err in
finding that Arington’s TTD benefits should terminate on August 4, 2015.
[25] Although Arington believes no PPI rating should have been assigned because
he had not yet reached MMI, a claim we have decided against his position, he
also argues that the Board abused its discretion in determining that he sustained
5% impairment to his right ankle. PPI benefits are awarded because of “the
partial or total loss of the function of a member or members of the body or the
body as a whole.” Bowles v. Griffin Indus., 798 N.E.2d 908, 910 (Ind. Ct. App.
2003). Therefore, “the aim of a PPI determination is to decide what parts of an
employee’s body have lost their proper function and to what extent.” Id.
Appellate review of the Board’s assessment of a worker’s PPI rating is limited
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 17 of 24 and, as with all matters entrusted to the Board’s discretion, the Board’s decision
must be affirmed if it is supported by the evidence. Bethlehem Steel Corp. v.
Dipolito, 168 Ind. App. 417, 424, 344 N.E.2d 67, 71 (1976).
[26] The Board reached the following conclusion concerning Arington’s PPI rating:
14. . . . Dr. Norton reported that [Arington] was unlikely to achieve 100% improvement. Dr. Lazoff reported that [Arington] sustained no impairment. [Arington]’s primary care physician, Dr. Kidder, reported that [Arington] had lost 100% of the use of his right lower extremity. [Arington] has not suffered a complete loss of use of his right foot. Based on those opinions, and pursuant to the discretion afforded at Ind. Code § 22-3-3- 10(i)(14), the Board concludes that [Arington] sustained a five percent (5%) impairment to the right foot due to injuries related to the November 11, 2014 accidental injury.
Appealed Order at 18, ¶14. Arington argues that the Board should not have
considered Dr. Lazoff’s zero percent PPI rating because it was based on the
FCE report and that report fraudulently reported that he was not wearing his
boot during the exam. See Brief of Appellant at 42; see also Exhibits, Vol. III at
36-37. However, the FCE evaluator confirmed that whether “the client wore a
boot during the FCE is irrelevant since the validity criteria of this test is based
on the client’s ability to constantly put forth his/her best effort. The boot has no
bearing on this.” Exhibits, Vol. I at 163.5 Therefore, Dr. Lazoff’s opinion was
5 Arington appears to have misinterpreted the report in claiming that the report falsely indicated that he did not have his boot on during the evaluation. The report does not state that Arington did not wear the boot.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 18 of 24 not based on a fraudulent report. Nevertheless, Arington’s challenge appears to
be solely to the credibility of the physicians, and we neither reweigh the
evidence nor judge the credibility of the witnesses. See Kovatch, 679 N.E.2d at
942-43. Arington claims that the PPI rating should be 100%, but based on the
evidence, Arington has not suffered a complete loss of use of his right foot.
There is sufficient evidence to support the Board’s conclusion that Arington
suffered 5% impairment to his right ankle and therefore, the Board did not
abuse its discretion in assigning a PPI rating.
III. Bad Faith and Lack of Diligence [27] Arington next argues that the Board erred in concluding there was insufficient
evidence to find that Eaton’s had engaged in bad faith and acted with a lack of
diligence. Indiana Code section 22-3-4-12.1(a) provides that the Board “has the
exclusive jurisdiction to determine whether the employer, the employer’s
worker’s compensation administrator, or the worker’s compensation insurance
carrier has acted with a lack of diligence, in bad faith, or has committed an
independent tort in adjusting or settling the claim for compensation.” Our
courts have made it clear that “bad faith” and “lack of diligence” are distinct
allegations. “[A] finding of bad faith requires evidence of a state of mind
reflecting a dishonest purpose, moral obliquity, furtive design, or ill will. Poor
judgment and negligence . . . do not amount to bad faith; the additional element
Instead, it states that he was observed both with and without his boot. In any event, whether he had the boot on or not does not matter as indicated by the evaluator’s statement.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 19 of 24 of conscious wrongdoing must be present.” Ag One Co-op v. Scott, 914 N.E.2d
860, 864 (Ind. Ct. App. 2009) (quotation and citation omitted). However, “a
lack of diligence requires no conscious wrongdoing by the actor.” Eastern
Alliance Ins. Grp. v. Howell, 929 N.E.2d 922, 926-27 (Ind. Ct. App. 2010)
(footnote omitted).
To act with “diligence” is to act with “caution or care” or “the attention and care required of a person.” Hence, to act with a “lack of diligence” is to act without the degree of attention and care required of a person. Stated affirmatively, a lack of diligence is a failure to exercise the attention and care that a prudent person would exercise. That is, to act with a lack of diligence is to act negligently.
Id. at 927 (citation and footnote omitted). The burden is on Arington to prove
that Eaton’s acted in bad faith. Borgman v. Sugar Creek Animal Hosp., 782 N.E.2d
993, 998 (Ind. Ct. App. 2002), trans. denied.
[28] Arington’s argument on appeal seems to conflate “lack of diligence” and “bad
faith,” but focuses primarily on bad faith. Therefore, we will only address the
bad faith claim he presents on appeal. The Board concluded that there was no
evidence indicating that Eaton’s or its insurance adjuster acted in bad faith. On
appeal, Arington presents several arguments as to how he believes that Eaton’s
acted in bad faith: 1) concealing evidence related to allegations that Arington
was “disruptive and belligerent” at Dr. Reecer’s office before the EMG, 2)
providing an illegal and fraudulent EMG prescription for his left leg, and 3)
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 20 of 24 falsely claiming that Eaton’s had a right to direct medical treatment. See Br. of
Appellant at 25-26.
[29] First, Arington argues that Eaton’s acted in bad faith by improperly concealing
documents showing how he was acting in a “disruptive and belligerent”
manner at Dr. Reecer’s office for the first scheduled EMG. Id. at 26-27. He
contends that production of these documents would have shown that he did not
engage in that behavior and that Eaton’s improperly suspended his benefits for
that reason. The record shows that Eaton’s suspended Arington’s benefits
because he refused or obstructed the examination, not because of an allegation
of “disruptive” or “belligerent” behavior as Arington contends. See Appellant’s
App., Vol. 3 at 39. As such, any documents showing such behavior did not
have any bearing on Eaton’s termination of his benefits and therefore, the
Board did not err in concluding that Eaton’s did not act in bad faith.
[30] Second, Arington argues that Eaton’s provided an illegal and fraudulent EMG
prescription. Specifically, he contends that his EMG prescription instructed Dr.
Reecer to perform an EMG of Arington’s “clutch leg” (left leg) instead of his
right leg and that the NCM illegally altered the EMG prescription. Br. of
Appellant at 50; see also Exhibits, Vol. I at 166. At the first EMG appointment,
Arington emphasized that the order indicated the EMG was to be performed on
his left leg instead of his right leg. Arington did not want to undergo the EMG
unless this was corrected despite Dr. Reecer informing him that the EMG was
in fact ordered for his injured leg. At the December 1, 2015 hearing, the NCM
testified that she did not modify any EMG order; rather, she called Dr. Shea’s
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 21 of 24 office and confirmed that the EMG was to be conducted on Arington’s right
lower foot. See Transcript, Volume I at 74-75. In any event, Dr. Shea clarified
his order and issued a written order for a second EMG on Arington’s right leg.
See Exhibits, Vol. I at 168. Arington has failed to show Eaton’s engaged in ill
will regarding his EMG prescription and therefore, the Board did not err in
concluding that Eaton’s did not act in bad faith.
[31] Last, Arington argues that Eaton’s falsely claimed that it had a right, under the
Act, to direct his medical treatment. We disagree. In an August 4, 2015 letter,
Eaton’s declined Arington’s request to change doctors for the EMG, noting that
it had a right to direct his medical treatment. Indiana courts have long held that
the employer or the employer’s insurer chooses the treating physician instead of
the employee. Furno v. Citizens Ins. Co. of Am., 590 N.E.2d 1137, 1140 (Ind. Ct.
App. 1992) (“Because the employer or insurer has the statutory right to select
the treating physician, [employer’s] choice of a different physician for
[employee] was not an illegal act.”), trans. denied. Therefore, Eaton’s was well
within its authority to direct medical treatment for Arington. Arington has
failed to show any ill will by Eaton’s in asserting or exercising this right and
therefore, the Board did not err in concluding that Eaton’s did not act in bad
faith.6
6 Arington also argues that his due process rights were violated when the Board did not order Eaton’s to provide all discovery, including unredacted NCM notes, claim notes, and a doctor’s prescription. See Br. of Appellant at 21. Generally, parties may obtain discovery of any nonprivileged matter relevant to the subject
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 22 of 24 [32] In sum, Arington has failed to meet his burden in showing that Eaton’s acted
with ill will or with conscious wrongdoing. Therefore, the Board did not err in
IV. Appellate Attorney Fees [33] Eaton’s requests that we assess sanctions in the form of attorney fees against
Arington for his “reckless and spurious accusations of fraud, professional
misconduct, and criminality.” Amended Brief of Appellee at 30. This court may
assess attorney fees if an appeal is frivolous or in bad faith. See Ind. Appellate
Rule 66(E). Our discretion to award attorney fees under this rule is limited to
instances when an appeal is permeated with meritlessness, bad faith, frivolity,
harassment, vexatiousness, or purpose of delay. Townsend v. Townsend, 20
N.E.3d 877, 880 (Ind. Ct. App. 2014), trans. denied. And although our authority
to award damages on appeal is discretionary, “we must use extreme restraint
when exercising this power because of the potential chilling effect upon the
exercise of the right to appeal.” Id. It is not intended to “punish mere lack of
merit, but something more egregious.” Helmuth v. Distance Learning Sys. Ind.,
Inc., 837 N.E.2d 1085, 1094 (Ind. Ct. App. 2005). After review of Arington’s
matter involved in the pending litigation. Mulder v. Vankersen, 637 N.E.2d 1335, 1337 (Ind. Ct. App. 1994), trans. denied. “A denial of a request for discovery in itself is not a violation of due process protection.” Burke v. City of Anderson, 612 N.E.2d 559, 565 (Ind. Ct. App. 1993), trans. denied. Over Eaton’s objection, the Board issued a discovery order for Eaton’s to tender unredacted copies of the NCM’s notes for in camera review. See Appellant App., Vol. 2 at 164. Thereafter, Eaton’s provided the required documents to the Board. The Board then issued a second discovery order requiring Eaton’s to produce unredacted NCM notes and partially redacted copies of the claim notes to Arington if it had not already done so. See id., Vol. 4 at 48. Eaton’s then provided the required discovery to Arington and notified the Board that it had complied with the order. See id. at 50-95. Based on our review, there was no violation of Arington’s due process rights.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 23 of 24 brief, it does not appear to be “laced with unseemly invective” and “filled with
unsupported accusations of conspiracies” as Eaton’s contends. Amended Br. of
Appellee at 33. Arington’s brief does not overstep the bounds of zealous
advocacy. Therefore, we can discern no basis for awarding attorney fees to
Eaton’s.
Conclusion [34] The Worker’s Compensation Act is to be liberally construed in order to
effectuate its humane purpose, and even with this purpose in mind, we
conclude these facts do not inescapably lead to a conclusion opposite the
Board’s decision that Arington’s benefits properly terminated on August 4,
2015 or that his PPI rating was 5%. We also conclude that Arington has not
proven that Eaton’s acted in bad faith. Therefore, we affirm the decision of the
Board. We also conclude that Eaton’s is not entitled to attorney fees.
[35] Affirmed.
Bradford, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020 Page 24 of 24