                                                                           FILED
                                                                      Aug 09 2017, 7:19 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court



      ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
      Steven K. Hahn                                          Nathan B. Maudlin
      Mollie E. Briles                                        Klezmer Maudlin, P.C.
      Ziemer Stayman Weitzel & Shoulders,                     New Harmony, Indiana
      L.L.P.
      Evansville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Evansville Courier Company,                             August 9, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              93A02-1703-EX-464
              v.                                              Appeal from the Indiana Worker’s
                                                              Compensation Board
      Mary Beth Uziekalla,                                    The Honorable Linda Peterson
      Appellee-Plaintiff.                                     Hamilton, Chair
                                                              Application No.
                                                              C-229777



      Mathias, Judge.


[1]   In this appeal from a decision of the Indiana Worker’s Compensation Board

      (“the Board”) in favor of the employee Mary Beth Uziekalla (“Uziekalla”), the

      employer Evansville Courier Company (“Courier”) claims the Board reversibly

      erred by rejecting one of the parties’ stipulations without notice and by

      admitting Uziekalla’s doctor’s opinion on the cause of her injury.

      Court of Appeals of Indiana | Opinion 93A02-1703-EX-464 | August 9, 2017                 Page 1 of 10
[2]   We affirm.


                                 Facts and Procedural Posture
[3]   Uziekalla injured her neck while lifting newspapers for Courier in 2008. She

      was treated by Dr. David Weaver (“Weaver”), a neurosurgeon, and filed a

      worker’s compensation claim on November 17, 2008. That claim was settled by

      a mediated agreement that was accepted by the Board on December 12, 2011

      (“the settlement agreement”). Before the settlement agreement was accepted,

      Uziekalla received an independent medical examination from Dr. Robert

      Vraney (“Vraney”), an orthopedic surgeon.


[4]   The settlement agreement provided for lump-sum payments to Uziekalla for her

      permanent partial impairment as rated by Weaver, temporary total disability,

      and attorney’s fees. In exchange, Uziekalla would dismiss her claim and waive

      further physician review. But the settlement agreement did allow for a claim for

      change of condition:


              5. In the event that [Uziekalla] alleges a change of condition or
              increased [permanent partial impairment rating] within the time
              period allowed by statute, the parties agree and stipulate that a
              medical opinion on whether [Uziekalla] suffered a compensable
              change in condition proximately resulting from the workplace
              injury of [2008], or has suffered a compensable increased
              [permanent partial impairment rating] proximately resulting from
              the workplace injury of [2008], shall be obtained in the following
              order from:

                      a) [Vraney]



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                      b) If either party objects to [Vraney] (which said objection need
                         not be made for cause), then the parties shall confer and select
                         a mutually agreeable medical doctor.
                      c) If the parties, upon conferral, are unable to select a medical
                         doctor, then [the Board] shall appoint a physician for rendering
                         said medical opinion.

      Ex. Vol., Jt. Ex. 1, p. 12 (“the doctor-selection provision”).


[5]   On May 4, 2015, Uziekalla filed a claim for change of condition, the subject of

      the instant appeal, alleging that her condition had worsened. Per the doctor-

      selection provision in the settlement agreement, the parties sought a medical

      opinion from Vraney on Uziekalla’s new claim. When Vraney declined to offer

      his opinion, the parties agreed to seek the opinion of Dr. Michael Doyle

      (“Doyle”), a neurosurgeon.


[6]   Doyle diagnosed Uziekalla with “a left C7-T1 synovial cyst causing a left C8

      radiculopathy” and “a degenerative subluxation of C7 on T1.” Id. at 16. In

      Doyle’s opinion, it was “highly likely that the synovial cyst and the

      degenerative subluxation at C7-T1 developed over time as a result of the natural

      history of progressive degenerative disease and not as [a] result of any work-

      related injury occurring in 2008.” Id. But Weaver, who also examined Uziekalla

      in connection with her new claim, came to a different conclusion: that “the

      [surgery] done as a result of [Uziekalla’s] work injury likely potentiated the

      development of the cystic lesion.” Id. at 18. Doyle reviewed Weaver’s diagnosis

      and, taking Weaver’s opinion to be that the synovial cyst was “a direct result”

      of Uziekalla’s previous surgery, id. at 19, “respectfully disagree[d]” with that


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      opinion. Id. Doyle opined that the “vast majority” of such cysts “occur

      spontaneously as the result of degenerative disease and are entirely unrelated to

      injury or prior [surgery].” Doyle added that he was “not aware of any good

      scientific study which directly links the development of a synovial cyst to [the

      type of surgery Uziekalla had].” Id.


[7]   On August 15, 2016, a single hearing member of the Board held a hearing to

      determine whether Uziekalla had suffered a compensable change of condition.

      Ahead of the hearing, the parties filed stipulations of fact, including the

      following relating to the settlement agreement and the doctor-selection

      provision: “Among other things, the approved settlement agreement contained

      a procedure for resolving future change of condition claims.” Id. at 3

      (“Stipulation 5”). At the beginning of the hearing, the hearing member admitted

      the parties’ “Joint Exhibit 1,” which included their stipulations of fact, as well

      as Weaver’s and Doyle’s evaluations of Uziekalla. Tr. pp. 4-5.


[8]   The hearing member heard Uziekalla’s testimony and the arguments of

      counsel. As to Uziekalla’s reliance on Weaver’s opinion rather than Doyle’s,

      Courier argued that Uziekalla “should be bound by the compromise agreement.

      The intent of the agreement was to set a procedure for expeditiously deciding

      this issue through one physician.” Tr. pp. 21-22. Doyle was the physician

      selected by the doctor-selection provision; therefore, Courier argued,

      Uziekalla’s claim should stand or fall on his opinion. Courier concluded by

      asking the Board “to resolve this in [Courier’s] favor [by] affirming the selection

      of [Doyle] pursuant to the agreement and also, if necessary, [by] finding that his

      Court of Appeals of Indiana | Opinion 93A02-1703-EX-464 | August 9, 2017   Page 4 of 10
       opinion is the better opinion between the two physicians on this very complex

       medical question dealing with the formation of the cyst.” Tr. p. 24. Uziekalla

       argued that she was not “bound by [the] agreement to accept [Doyle’s]

       opinion” as dispositive of her claim, and that Weaver’s opinion was the better

       one. Tr. pp. 20-21.


[9]    The hearing member took the matter under advisement and ruled for Uziekalla

       on September 28, 2016, finding “Dr. Weaver’s opinion to be more persuasive

       than that of Dr. Doyle” and that Uziekalla had “sustained a change in

       condition attributable to the prior work injury.” Appellant’s App. p. 7. The

       hearing member’s order adopted the parties’ stipulations in full, including

       Stipulation 5: that, “[a]mong other things, the approved settlement agreement

       contained a procedure for resolving future change of condition claims.” Id. at 5.

       The full Board affirmed the hearing member’s decision on February 1, 2017.

       This timely appeal followed.


[10]   Courier presents two issues for our review: whether the Board reversibly erred

       by accepting Stipulation 5 and then declining to give Doyle’s opinion

       conclusive effect, and whether the Board reversibly erred by admitting Weaver’s

       opinion.


                                     Discussion and Decision

                            I. The Board Did Not Err As to Stipulation 5

[11]   Courier claims the Board reversibly erred when it accepted the parties’

       stipulation that the settlement agreement “contained a procedure for resolving

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-464 | August 9, 2017   Page 5 of 10
       future change of condition claims[,]” Ex. Vol., Jt. Ex. 1, p. 3, but then declined

       to give Doyle’s opinion conclusive effect as to the instant change of condition

       claim, thereby rejecting the stipulation sub silentio without notice to the parties.

       Uziekalla responds that “the parties did not stipulate or agree to be bound by

       Dr. Doyle’s opinion.” Appellee’s Br. at 6 (initial capitalization omitted).

       Courier replies that this misses the point: what it seeks is remand for an

       opportunity to prove that that the parties did indeed intend for the medical

       opinion provided for by the settlement agreement to be exclusive, conclusive,

       and binding — an opportunity, Courier argues, the Board was bound to afford

       it once the Board rejected the stipulation so providing.


[12]   In general, Courier correctly states the law. The Board may reject the parties’

       stipulations of fact in whole or in part, but the Board must then allow the

       parties to present evidence as to any rejected part; the Board cannot accept a

       stipulation of fact and then find contrary to it. Thompson v. York Chrysler, 999

       N.E.2d 446, 451 (Ind. Ct. App. 2013); Duvall v. ICI Americas, Inc., 589 N.E.2d

       1200, 1202 (Ind. Ct. App. 1992); Princeton Mining Co. v. Earley, 114 Ind. App.

       343, 51 N.E.2d 382, 383 (1943) (en banc).


[13]   However, neither Stipulation 5 nor the settlement agreement reasonably bears

       the construction contended for them by Courier. Stipulation 5 characterizes the

       doctor-selection provision as “a procedure for resolving future change of

       condition claims.” Ex. Vol., Jt. Ex. 1, p. 3. The use of the indefinite article “a”

       precludes the construction that the settlement agreement furnished the

       procedure for resolving future change of condition claims — that is, the sole

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-464 | August 9, 2017   Page 6 of 10
       and exclusive procedure. Indeed, the use of the indefinite article contemplates

       the contrary: that the doctor-selection provision is one procedure among

       several, or one component of a larger procedure.


[14]   Because parties cannot change the meaning of a contract by stipulation, Price v.

       Freeland, 832 N.E.2d 1036, 1043 (Ind. Ct. App. 2005), the more important

       question is not what Stipulation 5 says, but what the settlement agreement says.

       But Stipulation 5 and the settlement agreement are entirely consistent with one

       another. The agreement says simply, “In the event that [Uziekalla] alleges a

       change of condition . . . , the parties agree . . . that a medical opinion on whether

       [Uziekalla] suffered a compensable change in condition . . . shall be obtained”

       from a certain doctor. Ex. Vol., Jt. Ex. 1, p. 12 (emphases added). And that is

       exactly what happened: Uziekalla alleged a change of condition, and a medical

       opinion from a certain doctor was obtained. The agreement does not so much

       as hint at the notion that the opinion of the doctor will be the only opinion

       considered, will be conclusive and dispositive of Uziekalla’s claim, or will have

       any effect whatever on the proceedings. Indeed, Courier tacitly concedes as

       much on appeal, precisely to the extent that it argues it could prevail only with

       the help of extrinsic evidence on remand, while remaining entirely silent as to

       the meaning of the settlement agreement as executed. See Appellant’s Br. at 13-

       14, Appellant’s Reply Br. at 6.


[15]   The settlement agreement is clear and unambiguous on this point. Accordingly,

       the relief Courier seeks on appeal — remand for an evidentiary hearing on the

       meaning of the settlement agreement — would be no relief at all. Specifically,

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       Courier would have no right to present evidence on the construction of a

       contractual provision that is clear and unambiguous on its face. The parol

       evidence rule bars admission of such evidence, that is, “extrinsic evidence . . . to

       add to, vary, or explain the terms of a written instrument [where] the terms of

       the instrument are clear and unambiguous.” Amici Resources, L.L.C. v. Alan D.

       Nelson Living Trust, 49 N.E.3d 1046, 1050 (Ind. Ct. App. 2016).


[16]   Finally, we note that Courier never asked the Board for the opportunity to

       present such evidence as it now asserts it was entitled to. At the August 15,

       2016, hearing, Courier asked the hearing member only to find that Uziekalla

       was “bound by the compromise agreement” and “to resolve this in [Courier’s]

       favor [by] affirming the selection of [Doyle] pursuant to the agreement” and

       giving his opinion conclusive effect. Tr. pp. 21, 24. Courier never argued that, if

       the hearing member declined to find that Uziekalla was “bound by the

       compromise agreement” in the manner it suggested, Tr. p. 21, then Courier

       should have the opportunity to present evidence as to a rejected stipulation.


[17]   The Board did not err with respect to Stipulation 5.


                II. Courier Waived Evidentiary Challenge to Weaver’s Opinion

[18]   Courier claims the Board reversibly erred in admitting Weaver’s opinion

       because it did not rest on reliable scientific principles and was therefore subject

       to exclusion under Indiana Evidence Rule 702(b). See, e.g., Hastings v. State, 58

       N.E.3d 919, 924-26 (Ind. Ct. App. 2016); O’Banion v. Ford Motor Co., 43 N.E.3d

       635, 643-645 (Ind. Ct. App. 2015). The hearing member’s ruling on the

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-464 | August 9, 2017   Page 8 of 10
       admissibility of expert testimony under Evidence Rule 702 was a matter within

       its broad discretion and will be reversed only for abuse of that discretion. See

       Estate of Borgwald v. Old Nat’l Bank, 12 N.E.3d 252, 256 (Ind. Ct. App. 2014).


[19]   But failure contemporaneously to object to admission of evidence waives the

       right on appeal to allege error in its admission. State Farm Fire & Cas. Co. v.

       Radcliff, 987 N.E.2d 121, 153 (Ind. Ct. App. 2013), trans. denied. Moreover,

       invited error is not reversible error. Wright v. State, 828 N.E.2d 904, 907 (Ind.

       2005). “Under this doctrine, a party may not take advantage of an error that [it]

       commits, invites, or which is the natural consequence of [its] own negligence or

       misconduct.” Id.


[20]   Here, Weaver’s opinion was submitted together with Doyle’s, and the rest of

       both parties’ evidence, as “Joint Exhibit 1.” This exhibit was admitted as

       tendered by both parties without objection from either at the August 15, 2016,

       hearing. Tr. pp. 4-5 (“The parties have tendered their Joint Exhibit 1. . . . I will

       show Joint Exhibit 1 admitted.”). At no point before or during the hearing did

       Courier move or argue for the exclusion of Weaver’s opinion. In its closing

       argument, Courier urged the hearing member only to find that “[Doyle’s]

       opinion is the better opinion between the two physicians on this very complex

       medical question dealing with the formation of the cyst.” Tr. p. 24 (emphasis

       added). Any error in the admission of Weaver’s opinion was invited by

       Courier’s own tender of the exhibit containing it or, at minimum, was waived

       by Courier’s failure contemporaneously to object to its admission.



       Court of Appeals of Indiana | Opinion 93A02-1703-EX-464 | August 9, 2017   Page 9 of 10
[21]   While we have often expressed a preference for adjudication on the merits,

       enforcing Courier’s waiver is the more appropriate course here. Under

       Evidence Rule 702, “the trial court [or the hearing member] is considered the

       gatekeeper for expert opinion evidence.” Akey v. Parkview Hosp. Inc., 941 N.E.2d

       540, 543 (Ind. Ct. App. 2015), trans. denied. It is impossible to review whether

       the hearing member properly performed his gatekeeping role when he was

       never asked by either party to do so. The scientific reliability of tendered

       evidence, like most expert-witness problems under Evidence Rule 702, presents

       precisely the kind of fact- and context-dependent question that cannot be

       intelligently decided without the record developed by contemporaneous

       objection. In short, if Courier doubted the scientific reliability of Weaver’s

       opinion, it ought not to have tendered it.


                                                Conclusion
[22]   The Board committed no error as to the parties’ Stipulation 5 on the meaning of

       the doctor-selection provision of the settlement agreement. Courier waived its

       evidentiary challenge to Weaver’s opinion by failing to raise it below. The

       judgment of the Board is therefore affirmed.

[23]   Affirmed.


       Kirsch, J., and Altice, J., concur.




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