      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                             FILED
      this Memorandum Decision shall not be                                          Jul 03 2018, 9:23 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.


      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      John H. Halstead                                          Jeffrey Sturm
      Kightlinger & Gray, LLP                                   George C. Patrick & Associates
      Merrillville, Indiana                                     Crown Point, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ameristar Casino,                                         July 3, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                17A-EX-3053
              v.                                                Appeal from the Worker’s
                                                                Compensation Board of Indiana
      Margaret Romero,                                          The Honorable Linda Peterson
      Appellee-Plaintiff.                                       Hamilton, Chairperson
                                                                Application No.
                                                                C-230740



      Najam, Judge.


                                        Statement of the Case
[1]   Ameristar Casino (“Ameristar”) appeals the decision of the Worker’s

      Compensation Board (“the Board”) in which the Board determined that


      Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018                           Page 1 of 12
      Margaret Romero was entitled to worker’s compensation benefits for injuries

      she sustained while working for Ameristar. Ameristar raises the following three

      issues for our review:


              1.     Whether the Board erred when it relied on a vocational
              report prepared by Romero’s expert.


              2.    Whether the Board erred when it found that Romero could
              no longer maintain reasonable employment.


              3.   Whether the Board erred when it calculated Romero’s
              combined permanent partial impairment rating.


      And Romero raises the following issue:


              4.       Whether we should increase her award by 10%.


[2]   We affirm the judgment of the Board and agree with Romero’s request to

      increase her award by 10%.


                                  Facts and Procedural History
[3]   On June 9, 2014, Romero was injured in the course and scope of her

      employment with Ameristar. In particular, as a result of a slip and fall, Romero

      injured her neck, back, and right shoulder. Ameristar acknowledged that

      Romero had suffered a compensable, work-related injury, and it paid her

      temporary total disability benefits.


[4]   Thereafter, Romero filed an application for worker’s compensation benefits,

      and a Single Hearing Member held a fact-finding hearing on her claim.
      Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 2 of 12
Following that hearing, the Single Hearing Member entered findings of fact and

conclusions thereon for Romero. Ameristar appealed that decision to the full

Board, and the Board in turn entered the following findings of fact:


        1.     On October 26, 2016, Dr. Gregory McComis provided the
        Board with an independent medical evaluation of Plaintiff and
        concluded her injuries of June 9, 2014, were work related and
        entitled her to authorized treatment.


        2.    Thereafter, Dr. [Nitin] Khanna provided Plaintiff with
        authorized treatment, found her at maximum medical
        improvement (MMI) and evaluated her for impairment.


        3.     Dr. Khanna provided authorized treatment and gave
        Plaintiff a 9% whole person permanent partial impairment (PPI)
        rating for her cervical spine fusion.


        4.     Dr. Khanna provided authorized treatment and gave
        Plaintiff a 12% PPI rating for the whole person for her lumbar
        spine fusion.


        5.     On June 29, 2015, Dr. Khanna combined these two PPI
        ratings to provide Plaintiff with a 21% PPI of the whole person
        for her lumbar and cervical spine injuries.


        6.    Subsequently, Dr. [Sunil] Dedhia provided Plaintiff with
        authorized treatment for her shoulder injury only, and not for her
        lumbar spine and cervical spine injuries.


        7.     In the course of treatment, Dr. Dedhia concluded Plaintiff
        was in need of physical therapy for her condition, stating he
        expected her to be at MMI . . . in the range of six to
        nine . . . months.

Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 3 of 12
        8.    On August 17, 2016, Plaintiff began physical therapy with
        Athletico.


        9.     On November 10, 2016, Dr. Dedhia found Plaintiff at
        [MMI] and gave Plaintiff a 12% PPI rating for her right shoulder
        for a full thickness rotator cuff tear and tear of the biceps tendon.


        10. Dr. Dedhia converted that into a whole person PPI rating
        of 7% for her shoulder, which is in addition to the previous
        finding of a 21% whole person rating for her lumbar and cervical
        spine injuries.


        11. Defendant has stipulated that Plaintiff’s cervical fusion,
        lumbar fusion, rotator cuff tear, and bicep tear are compensable
        injuries.


        12. The combined whole person PPI rating given to Plaintiff
        by Dr. Khanna and Dr. Dedhia is 28% for her lumbar spine,
        cervical spine[,] and shoulder injuries.


        13. Plaintiff filed [her functional capacity evaluation (“FCE”)]
        report by Thomas Roundtree on August 17, 2016, two days after
        he had prepared it.


        14. Thomas Roundtree concluded Plaintiff was permanently
        and totally disabled, unable to sustain any reasonable
        employment in the labor market.


        15. Defendant filed its report by Thomas Grzesik in the
        afternoon on the day prior to final hearing on June 15, 2017.


        16. Defendant had previously been given additional time to
        obtain a FCE report on the date previously set for final hearing
        on April 27, 2017.
Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 4 of 12
        17. Based upon Thomas Roundtree’s report filed on August
        17, 2016[,] and Dr. Khanna’s notation in his report of April 8,
        2015, that Plaintiff “cannot work,” this matter has long been
        considered to have the potential to result in a [permanent total
        disability (“PTD”)] award.


        18. At the time of Thomas Roundtree’s FCE report, Plaintiff
        was 52 years old.


        19. Plaintiff was a bartender for Defendant at the time she was
        injured.


        20. Plaintiff provided credible, detailed descriptions of her
        limitations during her deposition testimony.


Appellant’s App. Vol. 2 at 8-10. The Board then made the following relevant

conclusions:


        3.   Vocational evidence submitted to the Board by Tom
        Roundtree is credible, and it is determined that Plaintiff is
        permanently and totally disabled under the [Worker’s
        Compensation] Act.


        4.     Plaintiff is not able to engage in any type of reasonable
        gainful employment and is entitled to PTD compensation for five
        hundred (500) weeks at Defendant’s expense from the date of her
        injury.


                                                ***


        7.    Defendant is responsible for all prior medical treatment
        which may be unpaid and for any future palliative care.


Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 5 of 12
              8.      Plaintiff’s attorney is entitled to a fee of 10% of any
              medical bills which may remain unpaid and on the cost of any
              palliative care to be rendered.


      Id. at 10-11. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[5]   When reviewing the decisions of the Board, 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. Eads v. Perry Twp.

      Fire Dep’t, 817 N.E.2d 263, 265 (Ind. Ct. App. 2004), trans. denied.

      Additionally, all unfavorable evidence must be disregarded in favor of an

      examination of only that evidence and the reasonable inferences therefrom that

      support the Board’s findings. Id. And we neither reweigh the evidence nor

      judge witness credibility. Id. We will not disturb the Board’s conclusions

      unless the Board incorrectly interpreted the Worker’s Compensation Act.

      Inland Steel Co. v. Pavlinac, 865 N.E.2d 690, 697 (Ind. Ct. App. 2007).


                     Issue One: The Board’s Reliance on Roundtree’s Report

[6]   On appeal, Ameristar asserts not only that the Board erred but, more

      specifically, that the Board “committed legal error” when it relied on

      Roundtree’s report in that Roundtree prepared his report in August of 2016, but

      Romero was not found to have reached her MMI until November of 2016.

      Thus, Ameristar contends that the report was “unreliable and premature”


      Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 6 of 12
      because it was completed “before Romero had finished treatment or reached

      maximum medical improvement.” Appellant’s Br. at 11. For the same

      reasons, Ameristar also contends that Roundtree’s report was “not competent

      evidence.” Id. In sum, Ameristar alleges categorically that the Board erred

      when it considered the conclusion in Roundtree’s report that Romero was

      “unable to engage in any type of reasonable gainful employment” and was

      “permanently and totally disabled.” Appellant’s App. Vol 2 at 11, 26.


[7]   Ameristar’s arguments on this issue would merit consideration on appeal were

      it not for the well-established rules of appellate review which apply to this

      record and preclude such consideration. First, Ameristar stipulated to the

      admission of Roundtree’s report without limitation. Ex. Vol. at 3. Thus, it has

      waived its challenge to the competency of that report for our review. A

      challenge to the competency of proffered evidence goes to the admissibility of

      that evidence and must be raised to the tribunal where the evidence is offered.

      See, e.g., Ind. Evidence Rules 103(a), 104(a); see also Tucker v. Harrison, 973

      N.E.2d 46, 51-52 (Ind. Ct. App. 2012) (stating that admissibility of evidence

      requires “a requisite showing of competency”), trans. denied. It is axiomatic that

      such a challenge cannot be raised for the first time on appeal. E.g., Ind. Mich.

      Power Co. v. Roush, 706 N.E.2d 1110, 1115 n.4 (Ind. Ct. App. 1999), trans.

      denied.


[8]   Second, even if Ameristar’s contention on appeal that the report was “not

      competent evidence” were true, by stipulating to the report’s admissibility

      Ameristar invited the error, if any, in the Board’s reliance on that report.

      Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 7 of 12
       Invited error is not subject to appellate review. E.g., Brewington v. State, 7

       N.E.3d 946, 975 (Ind. 2014).


[9]    Third, and likewise, “[i]ncompetent evidence may support the Board’s findings

       where there is no objection.” Neidige v. Cracker Barrel, 719 N.E.2d 441, 444

       (Ind. Ct. App. 1999) (citing C.T.S. Corp. v. Schoulton, 270 Ind. 34, 383 N.E.2d

       293, 297 (1978)). Thus, even if Roundtree’s report were improperly admitted,

       which it was not, “[i]t is the rule in Indiana that where incompetent evidence

       has been admitted without objection or exception it may be considered upon

       appeal in determining the sufficiency of the evidence notwithstanding it should

       have been excluded upon proper and timely objection.” Hinshaw v. Waddell,

       128 Ind. App. 67, 142 N.E.2d 640, 643 (1957). As such, after having stipulated

       to the admission of Roundtree’s report, Ameristar’s arguments on appeal that

       we should disregard Roundtree’s report on the maximum-medical-

       improvement issue and rely instead upon the reports of Ameristar’s experts—as

       if Roundtree’s report were not in the record—is untenable as a matter of

       appellate procedure and contrary to law.


[10]   Ameristar did not dispute Roundtree’s assessment with its own vocational

       rehabilitation assessment until the day before the fact-finding hearing. Thus,

       both the Single Hearing Member and the Board discounted Ameristar’s

       evidence based on the fact that Romero had not been able to subject it to

       adversarial testing. Moreover, on appeal, Ameristar presents no argument

       supported by cogent reasoning that the timing of Roundtree’s report goes to the

       admissibility of the report rather than to its weight. See App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 8 of 12
       For all of those reasons, we decline to consider Ameristar’s arguments on this

       issue.


                                   Issue Two: Whether Romero Could
                                    Maintain Reasonable Employment

[11]   Ameristar next asserts that “[t]he unopposed evidence shows that Romero

       could maintain reasonable employment once she finished medical treatment

       and reached maximum medical improvement in November 2016.” Appellant’s

       Br. at 12. Ameristar’s arguments on this issue are predicated on this Court’s

       agreement with Ameristar on Issue One. That is, Ameristar’s arguments here

       are not merely an argument regarding the sufficiency of the evidence. Rather,

       Ameristar contends that Roundtree’s report should be entirely disregarded on

       the issue of maximum medical improvement. Ameristar asserts that, if this

       Court would merely exclude Roundtree’s report on the MMI issue, we would

       “not need to reweigh any evidence” because the “undisputed, competent

       evidence” from Ameristar’s experts requires a conclusion in favor of Ameristar,

       a conclusion contrary to that reached by the Board. Id. at 9, 12. However, as

       explained above, we do not consider Ameristar’s arguments under Issue One in

       that Ameristar stipulated to the admission of Roundtree’s report and, thus, did

       not preserve its objection to the competency of that report for our review.


[12]   Further, as previously noted, it was Roundtree’s opinion that Romero was

       “permanently and totally disabled” and “unable to engage in any type of

       reasonable gainful employment.” Appellant’s App. Vol. 2 at 11, 26. And the

       Board concluded that Roundtree’s vocational evidence “is credible.” Id. at 10.

       Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 9 of 12
       Thus, Ameristar’s argument that this Court adopt a contrary conclusion to that

       of the Board based on the reports of Ameristar’s experts is merely a request for

       this Court to reweigh the evidence, which we will not do. We reject

       Ameristar’s arguments on this issue.


                                  Issue Three: The Board’s Calculation
                                    of Romero’s Combined PPI Rating

[13]   Ameristar next asserts that the Board erroneously calculated Romero’s

       combined PPI rating of 28%. To arrive at Romero’s combined PPI rating, the

       Board added Dr. Khanna’s assessment that Romero’s cervical injury resulted in

       a 9% whole person PPI rating, Dr. Khanna’s assessment that Romero’s lumbar

       injury resulted in a 12% whole person PPI rating, and Dr. Dedhia’s assessment

       that Romero’s shoulder injury resulted in a 7% whole person rating. According

       to Ameristar, “that combined rating is incorrect under the AMA Guides to the

       Evaluation of Permanent Impairment.” Appellant’s Br. at 13.


[14]   Again, Ameristar has not preserved this issue for our review as it did not raise

       this issue before the Board. And this was not a finding that Ameristar did not

       expect from the Board; the parties expressly stipulated before the fact-finding

       hearing that whether Romero was “entitled to any permanent partial

       impairment rating” and, “[i]f so, how much,” were issues for the Board to

       resolve. Ex. Vol. at 3. Yet Ameristar did not argue or suggest to the Board that

       AMA guidelines were relevant to resolve those questions or, for that matter,

       that the Board lacked discretion to deviate from those guidelines. As such, we

       will not consider Ameristar’s arguments for the first time on appeal.

       Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 10 of 12
                Issue Four: Whether We Will Increase Romero’s Award by 10%

[15]   Finally, Romero argues on appeal that this Court should increase her award by

       10%. According to Indiana Code Section 22-3-4-8(f) (2017): “An award of the

       full board affirmed on appeal, by the employer, shall be increased by five

       percent (5%), and by order of the court may be increased ten percent (10%).”

       An order to increase the award by ten percent is not warranted unless the issues

       presented upon appeal are frivolous, appellate review is thwarted by the

       employer’s actions, or there has been an extended period of time within which

       the injured worker has been prevented from obtaining worker’s compensation

       benefits. Inland Steel Co., 865 N.E.2d at 703.


[16]   Romero has not demonstrated either that Ameristar’s actions have thwarted

       appellate review or that she has been prevented from obtaining worker’s

       compensation benefits for an extended period of time. Nevertheless, as

       discussed in Issues One, Two, and Three, Ameristar’s arguments on appeal not

       only lack merit but are not credible. Ameristar has prosecuted this appeal from

       the Board’s decision notwithstanding its own procedural default, including

       waiver and invited error. The doctrine of invited error precludes a party from

       taking advantage of an error that he or she commits or invites. Prime Mortg.

       USA, Inc. v. Nichols, 885 N.E.2d 628, 657 (Ind. Ct. App. 2008). As we have

       already noted, invited error is not subject to appellate review. Brewington, 7

       N.E.3d at 975. In any event, there was no error in the Board’s consideration of

       the stipulated evidence that Ameristar disputes on appeal as “not competent

       evidence.” See Neidige, 719 N.E.2d at 444. And Ameristar has also disregarded

       Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 11 of 12
       the rule of substantive law that even incompetent evidence admitted without

       objection may be considered upon appeal in determining the sufficiency of the

       evidence. See Hinshaw, 142 N.E.2d at 643.


[17]   We follow the logic of Ameristar’s argument in the abstract. But when that

       argument is measured against the record, the notion that this court can simply

       set aside evidence admitted by stipulation in order to accommodate Ameristar’s

       legal theory is incompatible with appellate review. See Inland, 865 N.E.2d at

       704 (holding award increase warranted where employer sought to have this

       court go against our standard of review and presented issues that proved to be

       disingenuous or trivial). This case presents an evidentiary dispute. We

       conclude that Ameristar’s prosecution of this appeal is untenable as it is based

       on arguments advanced in spite of the record, including its own stipulation

       without limitation, and contrary to our standard of review, which requires that

       we disregard all evidence unfavorable to the Board’s decision unless the

       evidence is undisputed and leads inescapably to a result contrary to the Board’s.

       See id. Therefore, we hold that it is appropriate to increase Romero’s award by

       10%.


[18]   In sum, we affirm the Board’s judgment for Romero and direct that Romero’s

       award be increased by 10%.


[19]   Affirmed.


       Robb, J., and Altice, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018   Page 12 of 12
