Ruben Cable v. Kinsey Youth Center (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 25, 2018
• Docket: 93A02-1705-EX-1182
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 25 2018, 9:28 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.

APPELLANT PRO SE Ruben Cable Kokomo, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ruben Cable, July 25, 2018 Appellant-Plaintiff, Court of Appeals Case No. 93A02-1705-EX-1182 v. Appeal from the Full Worker’s Compensation Board of Indiana Kinsey Youth Center, The Honorable Linda Peterson Appellee-Defendant. Hamilton, Chairperson Application No. C-231357

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-1182 | July 25, 2018 Page 1 of 5 Case Summary [1] Pro-se Appellant Ruben Cable (“Cable”) challenges an order of the Full

Worker’s Compensation Board of Indiana (“the Full Board”) adopting the

findings of fact and conclusions of law of the Single Hearing Member, with

respect to Cable’s worker’s compensation claim against his employer Kinsey

Youth Center (“Kinsey”).1 Cable presents the issue of whether the Full Board

erred in finding his claim time-barred. Lacking a sufficient record upon which

we can review the decision, we dismiss.

Facts and Procedural History [2] We do not have the benefit of an Appendix or transcript. However, Cable has

asserted that: On March 23, 2013, he sustained an injury to his left foot as a

result of slipping on snow while trying to enter Kinsey’s building to perform his

work duties; he was at that time being treated for an injury to his right foot, for

which he had been assigned a worker’s compensation claim number of

EMF4536; he reported the left foot injury and was assigned a worker’s

compensation claim number of EWG6548; despite making efforts to present a

separate claim for the second injury, he did not receive compensation or

medical treatment for the second injury; he sought legal redress; and, on

1 It is not made clear in the record that Kinsey was provided notice of Cable’s appeal. Cable’s Certificate of Service included in his appellant’s brief indicates that a copy of the brief was mailed to Carl C. Cafouros, Attorney at Law, and no particular client is named. The Notice of Appeal lists the same attorney as a distributee.

Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-1182 | July 25, 2018 Page 2 of 5 October 24, 2016, the Single Hearing Member found that Cable did not timely

file an application for worker’s compensation benefits with regard to the left

foot injury.

[3] On April 28, 2017, the Full Board “adopted and affirmed in all respects” the

findings and conclusions entered by the Single Hearing Member on October 24,

2016.2 Appealed Order at 1. On May 26, 2017, Cable filed his Notice of

Appeal.

[4] On August 14, 2017, this Court ordered Cable to file, within ten days of the

date of the order, evidence that he had made appropriate payment to the court

reporter for preparation of the transcript in this appeal. He did not provide

evidence of payment but filed a Motion for Leave to Proceed with the Case,

stating in relevant part:

The Appellant filed a complaint with this court requesting that his worker’s compensation case be heard by the appeals court and in doing so when his complaint was field [sic] he did not request a copy of the transcript of the worker’s compensation hearing that was heard by the board due to lack of financial funds. Mr. Cable is asking the court to proceed with the case through the appeals court.

2 Cable did not file a copy of the order of the Single Hearing Member.

Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-1182 | July 25, 2018 Page 3 of 5 [5] On September 8, 2017, this Court issued an order permitting Cable to proceed

on appeal in forma pauperis, pursuant to Indiana Appellate Rule 40.3 The order

specified that Cable was relieved of the obligation to pay an appellate filing fee. 4

By a separate order of March 5, 2018, this Court granted Cable a forty-five-day

extension of time in which to file his brief and Appendix. Cable timely filed his

brief.

Discussion and Decision [6] Cable argues that he timely and diligently pursued compensation for his left

foot injury. He “question[s] why” two separate workers’ compensation cases,

with separate claim numbers, “were combined to be as one.” Appellant’s Brief

at 12. We note that, although Cable is proceeding pro se, such litigants are held

to the same standard as trained counsel and are required to follow procedural

rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

This court will not “indulge in any benevolent presumptions on [their] behalf,

or waive any rule for the orderly and proper conduct of [their] appeal.” Ankeny

v. Governor of State of Ind., 916 N.E.2d 678, 679 n.1 (Ind. Ct. App. 2009)

(citation omitted), trans. denied.

3 Appellate Rule 40(D) provides that a party proceeding in forma pauperis is relieved of the obligation to prepay filing fees or costs and may file legibly handwritten or typewritten briefs and other papers. 4 On November 20, 2017, this Court issued an order relieving the court reporter of the obligation to prepare the transcript.

Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-1182 | July 25, 2018 Page 4 of 5 [7] In the context of a criminal case, our Indiana Supreme Court has observed,

“the failure to file an Appendix is not necessarily automatic cause for

dismissal,” and the better practice is that the appellate court order compliance

with the rules within a reasonable period. Johnson v. State, 756 N.E.2d 965, 967

(Ind. 2001). The Court found support in Appellate Rule 49(B), which provides,

“Any party’s failure to include any item in an Appendix shall not waive any

issue or argument.” However, the Johnson Court also recognized, “[i]f an

appellant inexcusably fails to comply with an appellate court order, then more

stringent measures, including dismissal of the appeal, would be available as the

needs of justice might dictate.” 756 N.E.2d at 967.

[8] The duty of presenting a record adequate for intelligent appellate review of an

issue raised by the appellant falls upon the appellant. Bambi’s Roofing, Inc. v.

Moriarty, 859 N.E.2d 347, 352 (Ind. Ct. App. 2006). Cable advised this Court

that he wished to proceed with his appeal without obtaining a transcript. On

March 5, 2018, Cable was granted a forty-five-day extension of time in which to

file his brief and Appendix. He did not file an Appendix and did not provide

the Single Hearing Member’s order incorporating the findings and conclusions

subsequently adopted by the Full Board. Because we lack an adequate record,

we are unable to conclude that the Full Board erred, and we dismiss Cable’s

[9] Dismissed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-1182 | July 25, 2018 Page 5 of 5