                                                                         FILED
                                                                    Mar 30 2017, 7:02 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Carol Modesitt Wyatt                                      Charles S. Hewins
      Dugan & Voland, LLC                                       Hewins Law Firm
      Indianapolis, Indiana                                     Evansville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Masterbrand Cabinets,                                     March 30, 2017
      Appellant,                                                Court of Appeals Case No.
                                                                93A02-1609-EX-2228
              v.                                                Appeal from the Worker’s
                                                                Compensation Board of Indiana
      Douglas Waid,                                             The Honorable Linda Peterson
      Appellee.                                                 Hamilton, Chairman
                                                                Application No. C-227286



      Barnes, Judge.


                                              Case Summary
[1]   Masterbrand Cabinets (“Masterbrand”) appeals a decision of the Indiana

      Worker’s Compensation Board (“Board”) awarding temporary total disability

      benefits to Douglas Waid. We affirm.




      Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017               Page 1 of 19
                                                      Issue
[2]   Masterbrand raises one issue, which we restate as whether the Board properly

      awarded temporary total disability (“TTD”) benefits to Waid following an on-

      the-job injury and a termination from his job for misconduct.


                                                      Facts
[3]   Masterbrand hired Waid in June 2013 as a production associate, which

      involved doing physical labor. During his employment Waid was “coached”

      for his workplace conduct on several occasions regarding anger issues. Tr. p.

      49. On June 6, 2014, Waid slipped while working and injured his lower back.

      Waid promptly notified his supervisor of the injury, but he initially thought that

      medical care would be unnecessary. However, Waid’s pain got worse, and

      Masterbrand eventually referred him to Dr. James Butler. Waid saw Dr. Butler

      on June 24, 2014, complaining of shooting pains in his back and pains down

      into his leg. Dr. Butler determined that, “to make an absolute causation

      determination,” he needed medical records related to Waid’s prior back

      problems. Ex. p. 7. Dr. Butler returned Waid to “full duty.” Id. Waid

      disagreed with the full duty recommendation, but he did try to return to work.

      After working a full shift, he was unable to get out of bed the next day. On

      June 26, 2014, he returned to work. Waid got into a verbal altercation with his

      supervisor regarding his back pain and his lack of work restrictions. He threw

      his ice pack, nearly striking another employee, and cursed at his supervisor.

      Masterbrand suspended Waid and terminated his employment effective July 2,

      2014.

      Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 2 of 19
[4]   Waid returned to Dr. Butler on July 1, 2014, and Dr. Butler placed Waid on

      restrictions of “max lifting of 20 lbs and change position as often as needed.”

      Id. at 12. On July 28, 2014, Waid had another appointment with Dr. Butler.

      Waid continued to complain of severe pain, and Dr. Butler ordered physical

      therapy but removed the work restrictions. On September 29, 2014, Dr. Butler

      released Waid from treatment, found maximum medical improvement

      (“MMI”), and assigned a three percent whole-person impairment rating.


[5]   In October 2014, Waid filed a motion to compel an independent medical

      examination (“IME”) by an orthopedic surgeon or a neurosurgeon. After a

      hearing, the Single Hearing Member found:

                  2.       Plaintiff immediately reported the injury to his
                           employer.


                  3.       Plaintiff initially told his employer that he felt he would
                           be okay and advised that he did have prior back
                           problems.


                  4.       Over the ensuing weekend the condition became worse
                           and worse.


                  5.       Plaintiff reported the increase in symptoms to his
                           employer but there was no immediate follow up.


                  6.       Plaintiff was finally seen for medical examination on
                           June 24, 2014 by James Butler, M.D. Dr. Butler
                           seemed to be more focused on making a causation
                           determination than active treatment. Dr. Butler


      Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017       Page 3 of 19
                     declined to place any work restriction in spite of
                     Plaintiff’s ongoing complaints of pain and limitations.


            7.       With respect to Plaintiff’s medical history with his
                     back, he advised Defendant and freely admitted in
                     testimony to his past history. He established through
                     the evidence, however, that by June 6, 2014 he was
                     unrestricted in his physical abilities and doing his full
                     function for Defendant.


            8.       Plaintiff was continuing to have difficulty doing full-
                     duty, as Dr. Butler advised Defendant Plaintiff could so
                     perform, and was upset about the impact the full-duty
                     work was having on his back pain.


            9.       One of Defendant’s representatives advised Plaintiff
                     that either he could do the job or they would get
                     someone who would. Plaintiff was terminated shortly
                     thereafter.


            10.      Plaintiff saw Dr. Butler on July 1, 2014 and, after
                     Plaintiff advised Dr. Butler that Defendant had
                     terminated him, Dr. Butler only then imposed a twenty
                     (20) pound weight restriction.


            11.      After receiving a new MRI and comparing it with a
                     prior one, even though Plaintiff continued to have
                     sharp pain in his back and in his leg, which Plaintiff
                     describes as almost unbearable, Dr. Butler released
                     Plaintiff at maximum medical improvement.


            12.      The Single Hearing Member finds that the appointment
                     of an independent medical examiner pursuant to



Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017         Page 4 of 19
                           Indiana Code 22-3-4-11 is appropriate in the
                           circumstances.


                  13.      This matter is therefore referred to the Ombudsman
                           Division of the Worker’s Compensation Board for the
                           appointment of an independent medical examiner at
                           the expense of Defendant as a statutory medical
                           expense.


      Appellee’s App. Vol. II pp. 6-7. Dr. Mike Chou examined Waid on August 26,

      2015. Dr. Chou found that Waid probably had an exacerbation of a pre-

      existing back condition and that “perhaps 10-20%” was attributed to the job

      injury. Appellant’s App. Vol. II p. 52. He diagnosed Waid with “bilateral L5

      radiculopathy secondary to protruding intervertebral disc at L4-5.” Id. Dr.

      Chou stated that Waid “should be able to return to work at sedentary duty” but

      that continued symptoms might require surgery. Id. Further, Dr. Chou stated

      that Waid would “reach his point of maximum medical improvement either

      after this episode of pain resolves without surgery, or if not, then the patient will

      reach it after surgery and recovering from that.” Id.


[6]   After another hearing, the Single Hearing Member issued findings of fact and

      conclusions of law as follows:


                  1.       Defendant introduced evidence designed to
                           demonstrate that Plaintiff was terminated for just cause
                           and that Plaintiff’s conduct fell well below the standard
                           reasonably expected of an employee in relation to his
                           employer and its representatives.



      Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017     Page 5 of 19
            2.       In the context of determining an injured worker’s
                     entitlement to temporary total disability or temporary
                     partial disability benefits, the Board is not required (nor
                     is it empowered) to make determinations of the justness
                     of the termination or the level of misconduct of the
                     injured worker.


            3.       Instead, the Board must merely determine whether the
                     injuries sustained at work produced an inability, total
                     or partial, to work.


            4.       Unquestionably Plaintiff has an inability to perform
                     work of the same kind or character as he was
                     performing when injured.


            5.       It was Plaintiff’s staunch belief that he was limited in
                     his ability to work that resulted in the confrontation
                     which ultimately led to his termination.


            6.       Plaintiff was correct and the medical records
                     demonstrate that Plaintiff retains only a very limited
                     capacity to work at this point; he has been released to
                     perform work of a sedentary nature.


            7.       Plaintiff has been so limited since the date of his injury
                     and that limitation continued through the date of
                     hearing on this issue.


            8.       Plaintiff is entitled to an award for his temporary total
                     disability from June 27, 2014 through the date of
                     hearing and continuing until terminated in accordance
                     with the Act and/or when ordered by the Board.


Appellant’s App. Vol. II p. 10.

Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017          Page 6 of 19
[7]   Masterbrand appealed the Single Hearing Member’s decision to the Full Board.

      Masterbrand argued in part that Waid was not entitled to TTD benefits because

      he had been terminated for misconduct. The Full Board affirmed the award

      and modified the findings of fact and conclusions of law as follows:


                  1.       Defendant introduced evidence designed to
                           demonstrate that Plaintiff was terminated for just cause
                           and that Plaintiff’s conduct fell below the standard
                           reasonably expected of an employee in relation to his
                           employer and its representatives.


                  2.       Unquestionably Plaintiff has an inability to perform
                           work of the same kind or character as he was
                           performing when injured.


                  3.       It was Plaintiff’s staunch belief that he was limited in
                           his ability to work and that the doctor showed evidence
                           bias that resulted in the confrontation that ultimately
                           led to his termination.


                  4.       Plaintiff is found to be credible.


                  5.       Furthermore, Plaintiff’s inability to work was related to
                           his work injury in question.


                  6.       Plaintiff was correct and the medical records
                           demonstrate that Plaintiff retains only a very limited
                           capacity to work at this point; he has been released to
                           perform work of a sedentary nature.




      Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017       Page 7 of 19
                  7.       Plaintiff has been so limited since the date of his injury
                           and that limitation continued through the date of
                           hearing on this issue.


                  8.       Plaintiff is entitled to an award for his temporary total
                           disability from June 27, 2014 through the date of
                           hearing and continuing until terminated in accordance
                           with the Act and/or when ordered by the Board.


      Appellant’s App. Vol. II p. 6. Masterbrand now appeals.


                                                   Analysis
[8]   Masterbrand challenges the Board’s award of TTD benefits to Waid. Our

      supreme court has held that the Worker’s Compensation 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) (quoting Talas v. Correct

      Piping Co., Inc., 435 N.E.2d 22, 28 (Ind. 1982)). “‘[D]oubts in the application of

      terms are to be resolved in favor of the employee, for the passage of the Act was

      designed to shift the economic burden of a work-related injury from the injured

      employee to the industry and, ultimately, to the consuming public.’” Id.

      (quoting Talas, 435 N.E.2d at 28).


[9]   In reviewing a worker’s compensation decision, we are bound by the factual

      determinations of the Board, and we 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 whether substantial evidence and


      Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017          Page 8 of 19
       reasonable inferences support the Board’s findings and conclusions. Id. We

       neither reweigh the evidence nor judge the credibility of the witnesses. Conway

       ex rel. Conway v. Sch. City of E. Chicago, 734 N.E.2d 594, 597 (Ind. Ct. App.

       2000), trans. denied. As to the Board’s interpretation of the law, we employ 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. Christopher R. Brown, D.D.S., 892 N.E.2d at 646. We will

       reverse the Board only if it incorrectly interpreted the Worker’s Compensation

       Act. Id.


[10]   Masterbrand argues that Waid is not entitled to TTD benefits because he was

       terminated for misconduct. Masterbrand contends that the Act allows the

       termination of TTD benefits when an employee is unable or unavailable to

       work for reasons unrelated to the work injury. See Ind. Code § 22-3-3-7(c).

       According to Masterbrand, Waid’s “loss of earning power resulted from his loss

       of temper and his aggression” rather than his injury. Appellant’s Br. p. 15.

       Masterbrand advocates that we adopt a two-part analysis to determine whether

       an employee is entitled to TTD benefits after termination. Under

       Masterbrand’s approach, “an employee is not entitled to TTD benefits when

       terminated for cause, unless the work-related injury is the employee’s sole

       inability to find or maintain employment.” Id. at 19. Alternatively,

       Masterbrand argues that Waid was only entitled to TTD benefits for a portion

       of the time period ordered by the Board.




       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 9 of 19
[11]   The Defense Trial Counsel of Indiana filed an amicus curiae brief in support of

       Masterbrand. Defense Trial Counsel advocated the following resolution:


               Whether an employee quits their employment or is terminated is
               irrelevant to the inquiry as to whether the employee is entitled to
               benefits. The language of I.C. § 22-3-3-7(c) does not distinguish
               between terminated employees and those who quit their
               employment. Rather, the unambiguous language of the Act only
               requires a finding of whether an employee is “unable or
               unavailable to work for reasons other than the work injury” to
               avoid payment of benefits. If an employee can show that he/she
               is completely unable to work because of their work injury, even
               after a justifiable termination, then the employee would be
               entitled to recovery of benefits because the inability to work is
               now directly related to the work injury. However, once the
               employee is released to even sedentary work, like the employee
               in Borgman [v. Sugar Creek Animal Hospital, 782 N.E.2d 993 (Ind.
               Ct. App. 2002)], the employee is no longer entitled to benefits
               because the inability to work is no longer related to the work
               injury, rather it was caused by the employee’s resignation or
               violation of company policies. To hold otherwise would tie an
               employer’s hands and force them to retain misbehaving
               employees only because they sustained a work injury which puts
               all employees at a safety risk. See Calvert v. General Motors Corp.,
               Buick Motor Division, 327 N.W.2d 542 (Mich. Ct. App. 1982)
               (holding employee who brought concealed weapon to work was
               terminated for cause therefore the employee was not entitled to
               disability benefits). Further, it would force employers to treat
               injured and non-injured workers differently exposing employers
               to added litigation for its disparate treatment of employees.


       Amicus Curiae Br. of Defense Trial Counsel of Indiana pp. 11-12.


[12]   On the other hand, Waid argues that he was entitled to benefits pursuant to

       Indiana Code Section 22-3-3-7(a) because he did not have the ability to return
       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 10 of 19
       to work of the same kind or character. Waid contends that Masterbrand is

       improperly disputing factual findings of the Board. He argues that the Board’s

       factual findings are fully supported by the record and cannot be reversed on

       appeal. Finally, he argues that the situation is adequately addressed by Indiana

       statutes, and it is unnecessary to look to other states or create a new test.


[13]   The Indiana Trial Lawyers Association filed an amicus curiae brief in support

       of Waid. The Trial Lawyers Association contends that Masterbrand is

       requesting this court to “re-weigh the evidence and adopt a two-part analysis

       that has never been applied in the history of the Board or by an appellate court

       in Indiana.” Amicus Curiae Br. of Indiana Trial Lawyers Association p. 5.

       The Trial Lawyers Association notes that Masterbrand’s argument would set a

       bad precedent because “potentially any time an employee disagrees with his

       employer over temporary total disability . . . or any other issue surrounding his

       workers compensation claim, the employer could terminate him claiming

       employee insubordination,” and it would encourage employers to create

       conflict “in an effort to find a reason to terminate an employee and avoid

       paying wage benefits under the Act.” Id. at 7.


[14]   This matter requires us to interpret the Indiana Worker’s Compensation Act.

       The primary goal in statutory construction is to determine, give effect to, and

       implement the intent of the legislature. State v. Dugan, 793 N.E.2d 1034, 1036

       (Ind. 2003). The best evidence of legislative intent is the language of the statute

       itself, and all words must be given their plain and ordinary meaning unless

       otherwise indicated by the statute. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.

       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 11 of 19
       2001). It is just as important to recognize what the statute does not say as it is

       to recognize what it does say. Dugan, 793 N.E.2d at 1036.


[15]   Indiana Code Section 22-3-2-2(a) requires that “[e]very employer and every

       employee, except as stated in IC 22-3-2 through IC 22-3-6, shall comply with

       the provisions of IC 22-3-2 through IC 22-3-6 respectively to pay and accept

       compensation for personal injury or death by accident arising out of and in the

       course of the employment, and shall be bound thereby.” Further, under

       Indiana Code Section 22-3-3-7(a), “[c]ompensation shall be allowed on account

       of injuries producing only temporary total disability to work or temporary

       partial disability to work . . . .”


[16]   “The purpose of awarding temporary total disability payments under the

       Indiana Worker’s Compensation Act is to compensate an employee for a loss of

       earning power because of an accidental injury arising out of, and in the course

       of, his or her employment.” Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d

       1233, 1239 (Ind. Ct. App. 2003). “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.” Id. “Once the injury has reached a permanent and

       quiescent state, however, the treatment period ends, and the extent of the

       permanent injury is assessed for compensation purposes.” Id. “Thus, once the

       injury has stabilized to a permanent and quiescent state, temporary disability

       ceases, and the extent of permanent injury resulting in a degree of impairment

       or total disability is determined.” Id.

       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 12 of 19
[17]   Here, there is no dispute that Waid was injured in the course of his employment

       at Masterbrand. However, Masterbrand argues that Waid was not entitled to

       TTD benefits because he was terminated for misconduct. In support of its

       argument, Masterbrand relies in part on Indiana Code Section 22-3-3-7(c),

       which provides:


               Once begun, temporary total disability benefits may not be
               terminated by the employer unless:


                   (1)      the employee has returned to any employment;


                   (2)      the employee has died;


                   (3)      the employee has refused to undergo a medical
                            examination under section 6 of this chapter or has
                            refused to accept suitable employment under section 11
                            of this chapter;


                   (4)      the employee has received five hundred (500) weeks of
                            temporary total disability benefits or has been paid the
                            maximum compensation allowed under section 22 of
                            this chapter; or


                   (5)      the employee is unable or unavailable to work for
                            reasons unrelated to the compensable injury.


       According to Masterbrand, Waid’s termination was the reason for his inability

       to work, not Waid’s injury. See Ind. Code § 22-3-3-7(c)(5). Waid properly

       points out that this statute is not technically applicable to this case. The statute



       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017    Page 13 of 19
       applies to the termination of TTD benefits. Waid’s appeal concerns his

       entitlement to benefits, not the termination of benefits.


[18]   The parties rely heavily on Borgman v. Sugar Creek Animal Hospital, 782 N.E.2d

       993 (Ind. Ct. App. 2002), trans. denied, and E.F.P. Corp. v. Pendill, 413 N.E.2d

       279 (Ind. Ct. App. 1980). In Borgman, the employee was injured during a fall at

       work, and seven months later she voluntarily terminated her employment based

       on personal difficulties with a co-worker. A month later, she sought treatment

       for injuries that she claimed were related to her fall. The employee’s claim was

       denied, and the Board found, in part, that the employee was entitled to TTD

       benefits for only a six-week period beginning when she left her employment and

       ending when a physician released her to return to sedentary work.


[19]   On appeal, the employee argued that she was entitled to TTD benefits in

       addition to the six-week period. We held that the evidence was sufficient to

       support the employee’s TTD benefits for the six-week period. Notwithstanding

       that determination, we also held:


               Borgman asserts entitlement to temporary partial disability
               benefits (TPD) because Sugar Creek did not offer her any work in
               accordance with her ability to perform sedentary work.
               Borgman, however, did not preserve the issue of her entitlement
               for such benefits at the May 16, 2000 hearing. Also, because
               Borgman voluntarily terminated her employment with Sugar
               Creek due to reasons unrelated to her work injury, Sugar Creek
               did not have a duty to offer her work according to medical
               restrictions or to remit any TPD benefits to her. Thus, the Board
               properly determined that Borgman was unavailable for work for
               reasons that were not related to her work injury. Indiana Code

       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 14 of 19
               section 22-3-3-7(c)(5), which provides that TTD benefits “may
               not be terminated by the employer unless the employee is unable
               or unavailable to work for reasons unrelated to the compensable
               injury,” commands such a result in this instance. It is thus
               apparent that the Board concluded that Borgman failed to meet
               her burden of proof that she was entitled to disability benefits for
               the full period of February 16, 1996, to November 24, 1997, and
               that conclusion is supported by the evidence.


       Borgman, 782 N.E.2d at 997. We affirmed the Board’s decision. Consequently,

       pursuant to the Board’s decision, the employee received benefits for only the

       six-week period.


[20]   Masterbrand asserts that Borgman stands for the proposition that “an

       employee’s voluntary resignation from employment, even though restricted

       from full duty work as a result of the work injury, renders the employee unable

       or unavailable to work for reasons unrelated to the work injury and, therefore

       ineligible for receipt of TTD benefits.” Appellant’s Br. p. 14. We conclude that

       Masterbrand is reading too much into Borgman. The employee in Borgman in

       fact did receive benefits for six weeks after she terminated her employment, and

       we affirmed that decision. The denial of her benefits related to the time period

       after that initial six weeks. As a result, we cannot say that Borgman bars an

       employee who has been voluntarily or involuntarily terminated from later

       receiving TTD benefits.


[21]   In E.F.P. Corp., the employee was injured during his employment and started

       receiving TTD benefits. After being released by the doctor and returning to

       work, the employee was fired “for reasons unrelated to his injury.” E.F.P.

       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 15 of 19
       Corp., 413 N.E.2d at 280. Later, a neurologist determined that the employee

       was unable to work due to the injury. The issue was whether the employee was

       “entitled to receive benefits from the date when his injury recurred despite the

       fact he was no longer employed by E.F.P.” Id. The Board granted TTD

       benefits to the employee, and we affirmed. We “found no restrictive language

       which limits recovery of total temporary disability payments to situations where

       the injured employee remains with his original employer.” Id. We held that

       the employer was ignoring “the fact that [the employee’s] continuing

       unemployment is not due to his termination, but rather due to the injury he

       sustained while in their employment.” Id. at 281.


[22]   Even if Indiana Code Section 22-3-3-7(c) applied here, based on E.F.P., the

       statute would not result in the denial of Waid’s benefits. The statute allows the

       termination of benefits where the employee is unable or unavailable to work for

       reasons unrelated to the injury. The statute does not require the work to be for

       the same employer as when the employee was injured. Although Waid was

       terminated from his employment at Masterbrand, the relevant inquiry is

       whether his inability to work, even for other employers, was related to his

       injury. The Board here found that Waid’s inability to work was related to his

       injury. That decision rested on a determination of Waid’s credibility and

       weighing of the evidence. On appeal, we cannot reweigh the evidence or judge

       the credibility of the witnesses. Conway, 734 N.E.2d at 597.


[23]   In fact, the worker’s compensation statutes do not directly address the situation

       here. The General Assembly has shown that it is capable of limiting or barring

       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 16 of 19
       an employee’s claim to worker’s compensation benefits. For example, Indiana

       Code Section 22-3-2-8 provides:


               No compensation is allowed for an injury or death due to the
               employee’s knowingly self-inflicted injury, his intoxication, his
               commission of an offense, his knowing failure to use a safety
               appliance, his knowing failure to obey a reasonable written or
               printed rule of the employer which has been posted in a
               conspicuous position in the place of work, or his knowing failure
               to perform any statutory duty.


       Further, Indiana Code Section 22-3-3-11(a) provides: “If an injured employee,

       only partially disabled, refuses employment suitable to his capacity procured for

       him, he shall not be entitled to any compensation at any time during the

       continuance of such refusal unless in the opinion of the worker’s compensation

       board such refusal was justifiable.” The statutes, however, provide no direct

       bar to the claim of an employee who has been terminated prior to the start of

       TTD benefits. The statutes also provide no support for the new tests advocated

       by Masterbrand and Amicus Curiae Defense Trial Counsel of Indiana. Further,

       any doubts in the application of the worker’s compensation statutes must be

       resolved in favor of the employee. Daugherty, 802 N.E.2d at 919. We conclude

       that Waid’s termination for misconduct does not prevent him from receiving

       TTD benefits as a result of his on-the-job injury.


[24]   The basic question here is whether Waid had “the ability to return to work of

       the same kind or character during the treatment period for the injury.” Cavazos,

       783 N.E.2d at 1239. The Board found that Waid “[u]nquestionably” was


       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 17 of 19
       unable to “perform work of the same kind or character” that he was performing

       when injured. Appellant’s App. Vol. II p. 6. According to the Board, Waid

       “has been so limited since the date of his injury and that limitation continued

       through the date of hearing on this issue.” Id. Masterbrand argues that Waid

       failed to present medical evidence that he was unable to work other than for the

       period from July 1, 2014, to July 28, 2014, and August 25, 2015, until he

       reaches maximum medical improvement. Waid testified that he had severe

       pain in his back and pain shooting down his legs and that he had been

       physically unable to work due to his back pain. The Board found Waid to be

       credible. We have held that “lay evidence, such as a claimant’s own testimony,

       is sufficient to support an initial award of temporary total disability payments.”

       Tanglewood Trace v. Long, 715 N.E.2d 410, 414 (Ind. Ct. App. 1999), trans.

       denied. Further, Dr. Chou diagnosed Waid with “bilateral L5 radiculopathy

       secondary to protruding intervertebral disc at L4-5” that might require surgery.

       Appellant’s App. Vol. II p. 52. Masterbrand’s argument is merely a request to

       reweigh the evidence, which we cannot do. Conway, 734 N.E.2d at 597. We

       conclude that the Board’s decision was supported by substantial evidence and

       reasonable inferences support the Board’s findings and conclusions. Further,

       we cannot say that the Board’s interpretation of the worker’s compensation

       statutes is erroneous.


                                                  Conclusion
[25]   The Board properly awarded TTD benefits to Waid despite his termination for

       misconduct. We affirm.

       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 18 of 19
[26]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017   Page 19 of 19
