      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any
                                                                           Sep 07 2017, 8:10 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                                   CLERK
                                                                            Indiana Supreme Court
      estoppel, or the law of the case.                                        Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT
      Ann H. Stewart
      Jenny R. Buchheit
      Justin P. Spack
      Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Aisin USA MFG, Inc.,                                     September 7, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               93A02-1703-EX-433
              v.                                               Appeal from the Indiana Worker’s
                                                               Compensation Board
      Charles Brenner,                                         The Honorable Linda P. Hamilton,
      Appellee-Plaintiff                                       Chairman
                                                               Application No. C-214694



      Altice, Judge.


                                               Case Summary


[1]   AISIN USA Mfg., Inc. (AISIN) appeals from the decision of the full Worker’s

      Compensation Board (the Board) that Charles Brenner was entitled to statutory
      Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017       Page 1 of 10
      compensation and benefits for injuries he incurred arising out of his

      employment with AISIN. AISIN raises the following restated issues on appeal:


              1. Did the Board err in relying on an unsigned and partially
              illegible physician’s report?


              2. Was the Board’s finding that Brenner’s injuries arose out of
              his employment with AISIN supported by sufficient evidence?


              3. Did the Board err in referring the matter for a physician
              evaluation on the issue of permanent partial impairment?


      We affirm.


                                       Facts & Procedural History

[2]   AISIN manufactures components for the automotive industry. Brenner began

      working at AISIN’s Seymour, Indiana facility in 2003. Brenner initially

      worked as a press officer, later moving to a material handler position in March

      of 2009. The new position was quite physically demanding and required

      Brenner to lift hundreds of boxes every day. In October 2010, Brenner began

      suffering from pain in his right shoulder, neck, and lower back. Brenner

      reported his complaints to his supervisors and requested a transfer of his

      position, but his request was denied.


[3]   Brenner continued to experience pain, and in November 2011, he saw Kim

      Swindell, an onsite nurse practitioner AISIN contracted with to address

      employee health issues. Brenner reported his symptoms to Swindell, and

      Swindell recommended that he see Ron Spencer, who is employed by AISIN to
      Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 2 of 10
      address occupational injuries. Brenner reported his symptoms to Spencer, but

      no further action was taken by AISIN.


[4]   Swindell subsequently referred Brenner to Dr. Bradley Morin, who opined that

      Brenner suffered from ulnar neuropathy and cervical arthritis which were likely

      caused or exacerbated by Brenner’s work duties. Dr. Morin assigned a twenty-

      pound weight restriction and referred Brenner to Dr. Kristopher Williams, an

      orthopedist, for further treatment.


[5]   Dr. Williams diagnosed Brenner with carpal tunnel syndrome and ulnar nerve

      entrapment caused by repetitive lifting at his employment. Dr. Williams

      recommended surgery, namely, bilateral open carpal tunnel release and

      bilateral ulnar nerve transposition. Brenner’s last day of work for AISIN was

      February 25, 2012, two days before his scheduled surgery. Brenner was denied

      short term disability by his insurance provider because it determined that his

      injuries were work-related.


[6]   Brenner continued to suffer from cervical pain following this surgery, and he

      was subsequently referred to Dr. Venu Vemuri, who diagnosed Brenner with

      cervical stenosis and degenerative disc disease. Brenner underwent a cervical

      fusion surgery in September of 2012. Brenner continued to suffer lower back

      pain, and Dr. Vemuri referred him to physical therapy, where it was noted that

      Brenner’s lower back pain began in October of 2010, from heavy labor at work.

      Brenner also suffered from right lower extremity pain. Dr. Vemuri did not

      opine as to the cause of Brenner’s lower back symptoms. Brenner was released


      Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 3 of 10
      from Dr. Vemuri’s care in May 2013, with the recommendation that he

      undergo a follow-up x-ray in one year. Brenner never returned to work after

      February 2012, and he is now on disability.


[7]   Brenner filed an application for adjustment of claim on March 5, 2012. A

      hearing was held before a single hearing member on March 10, 2016, at which

      Brenner appeared pro se. The parties submitted a stipulation that the only

      issues before the hearing officer were whether Brenner had established that his

      injuries arose out of his employment, whether he had reached maximum

      medical improvement, and whether he was entitled to compensation and

      benefits. During the hearing, the hearing officer indicated that the issue of PPI

      would be held in abeyance because the parties were not prepared to address it.

      Neither party objected to this arrangement.


[8]   On August 26, 2016, the hearing officer issued a decision concluding, among

      other things, that Brenner “was injured by accident in the course of and arising

      out of his employment with [AISIN].” Appellant’s Appendix Vol. 2 at 12.

      Specifically, the hearing officer found that Brenner’s cervical condition, carpal

      tunnel syndrome, and ulnar nerve condition were either caused or aggravated

      by his work. The hearing officer also found, however, that Brenner had not

      submitted evidence sufficient to prove that his lumbar degenerative disc disease

      was caused or aggravated by his work duties. The order provided further that




      Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 4 of 10
      the issue of PPI would “be set for hearing in due course.”1 Id. at 13. AISIN

      appealed to the full Board, and on February 1, 2017, the Board issued its

      decision affirming the hearing officer’s decision, incorporating its findings of

      fact, and modifying its conclusions of law. AISIN now appeals.


                                             Discussion & Decision


[9]   The standard of review applicable to appeals from decisions of the Board is

      well-settled:


               “‘On appeal, we review the decision of the Board, not to reweigh
               the evidence or judge the credibility of witnesses, but only to
               determine whether substantial evidence, together with any
               reasonable inferences that flow from such evidence, support the
               Board’s findings and conclusions.’” Bertoch v. NBD Corp., 813
               N.E.2d 1159, 1160 (Ind. 2004) (quoting Walker v. State, 694
               N.E.2d 258, 266 (Ind. 1998)). In so doing, we apply a two-tiered
               standard of review. Ag One Co-op v. Scott, 914 N.E.2d 860, 862
               (Ind. Ct. App. 2009). We first review the record to determine
               whether there is competent evidence of probative value to
               support the Board’s findings, and then determine whether the
               findings support the decision. Id. at 863. As a general matter, we
               are bound by the Board’s findings of fact and may only consider
               errors in the Board’s conclusions of law. Ind. Mich. Power Co. v.
               Roush, 706 N.E.2d 1110, 1113 (Ind. Ct. App. 1999). However,
               we may disturb the Board’s factual determinations if we
               determine that the evidence is undisputed and leads inescapably
               to a result contrary to that reached by the Board. Id. We review




      1
       Although the issue of PPI remained unresolved, the Board’s decision awarding temporary total disability
      benefits was nevertheless an appealable final decision. See Cox v. Worker’s Comp. Bd. of Ind., 675 N.E.2d 1053,
      1056-57 (Ind. 1996).

      Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017            Page 5 of 10
                 the Board’s conclusions of law de novo. Bertoch, 813 N.E.2d at
                 1160.


       Waters v. Indiana State Univ., 953 N.E.2d 1108, 1112 (Ind. Ct. App. 2011), trans.

       denied.


[10]   We also note that Brenner has not filed an appellate brief. Under these

       circumstances, we apply a less stringent standard with respect to the showing

       necessary to establish reversible error. In re Paternity of S.C., 966 N.E.2d 143,

       148 (Ind. Ct. App. 2012), trans. denied. When an appellee fails to submit a brief,

       we may reverse if the appellant establishes prima facie error, which is error at

       first sight, on first appearance, or on the face of it. Id. But even under the

       prima facie error standard, we are nevertheless obligated to correctly apply the

       law to the facts in the record to determine whether reversal is warranted.

       Tisdale v. Bolick, 978 N.E.2d 30, 34 (Ind. Ct. App. 2012).


                                       1. Admissibility of Evidence


[11]   We first address AISIN’s argument that the Board erred in relying on

       inadmissible evidence, namely, Dr. Williams’s report. AISIN argues that the

       report was inadmissible pursuant to Ind. Code § 22-3-3-6(e)(5) because it was

       not signed, and further that the letter should not have been admitted because it

       was partially illegible. We address each argument in turn.


[12]   I.C. § 22-3-3-6(e) provides a list of requirements for physician’s statements to be

       admissible in worker’s compensation proceedings, and includes the requirement

       that the document contain “[t]he original signature of the physician or
       Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 6 of 10
       surgeon.” AISIN fails to note, however, that I.C. § 22-3-3-6(g) provides that a

       party objecting to the admission of a statement on the basis that it does not

       meet the requirements of I.C. § 22-3-3-6(e) is required to give written notice of

       the objection no later than twenty days before the hearing, and “[f]ailure to

       object as provided in this subsection precludes any further objection as to the

       adequacy of the statement under subsection (e).” The CCS does not reflect any

       such objection, and AISIN has not directed our attention to anything in the

       record showing that such an objection was made. Because AISIN failed to

       properly preserve this issue, it is waived.


[13]   As to AISIN’s argument concerning the report’s illegibility, we note that AISIN

       has not developed its argument beyond making the conclusory statement that

       the report is inadmissible because it is “substantially illegible.” Appellant’s Brief

       at 20. Nor has it cited any authority directly in support of its position in this

       regard. In any event, we note that the strict rules of evidence do not apply in

       worker’s compensation proceedings. See K-Mart Corp. v. Morrison, 609 N.E.2d

       17, 26 (Ind. Ct. App. 1993). While we acknowledge that the report is partially

       illegible—it appears to be a poor-quality copy and the words on the far left-hand

       side of the page are difficult and/or impossible to read—the majority of the

       report is legible. In admitting the report, the hearing officer explained that it

       would consider the report’s partial illegibility in considering the weight to

       attribute to it. In its decision, the hearing officer noted that in a questionnaire

       from Brenner’s short-term disability provider, Dr. Williams had stated that

       Brenner’s diagnosis was carpal tunnel syndrome and ulnar nerve entrapment


       Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 7 of 10
       caused by repetitive lifting at work, and that this opinion was reiterated in the

       report at issue. The Board’s decision to treat the issue of the report’s legibility

       as affecting its weight rather than its admissibility was reasonable, particularly

       in light of the presentation of other evidence of Dr. Williams’s opinion on the

       issue of causation. Furthermore, Dr. Morin’s report, in which he gave the same

       opinion, was also admitted into evidence. In light of these circumstances, and

       keeping in mind the relatively informal nature of worker’s compensation

       proceedings, we conclude that AISIN has not established reversible error on

       this basis.


                                      2. Sufficiency of the Evidence


[14]   AISIN also argues that Brenner presented insufficient evidence to establish that

       his injuries arose out of his employment with AISIN. See I.C. § 22-3-2-2(a)

       (requiring employers to provide “compensation for personal injury or death by

       accident arising out of and in the course of the employment”). AISIN

       acknowledges that Brenner submitted medical reports from two physicians,

       both of whom opined that the injuries at issue were caused or exacerbated by

       his work. AISIN argues, however, that these reports are legally insufficient to

       support an award of benefits because they are based on Brenner’s own

       statements to his physicians. In support of this proposition, AISIN cites

       Obetkovski v. Inland Steel Indus., 911 N.E.2d 1257, 1263 (Ind. Ct. App. 2009),

       trans. denied, in which this court found that two “narrative medical reports”

       were insufficient to establish causation for the purposes of obtaining worker’s

       compensation benefits.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 8 of 10
[15]   AISIN’s reliance on Obetkovski is misplaced. This court did not find the medical

       reports to be legally insufficient because they were based on statements made by

       the claimant. Rather, the court found the reports to be insufficient to establish

       causation because neither set forth the physician’s opinion as to the cause of the

       claimant’s injuries. Id. In this case, however, both physicians opined that

       Brenner’s injuries were caused or exacerbated by his work. Moreover, it is clear

       that the physicians’ opinions did not simply repeat Brenner’s complaints;

       rather, they are based on the physicians’ examinations and testing in

       combination with the patient history Brenner provided. These opinions were

       plainly sufficient to establish causation for the purposes of obtaining worker’s

       compensation benefits, and Brenner’s remaining arguments concerning the

       sufficiency of the evidence are merely requests to reweigh the evidence and

       judge the credibility of witnesses,2 which we will not do on appeal.


                                            3. Further Hearing on PPI


[16]   Finally, AISIN argues that the Board erred in referring Brenner to its

       ombudsman division to recommend a physician to evaluate Brenner and offer

       an opinion on PPI. The authority AISIN cites in support of this proposition

       does not mandate a conclusion that it was error for the Board to take such an




       2
         For example, AISIN argues that Brenner was diagnosed with degenerative conditions, but Dr. Morin’s
       report claimed that there was an acute injury. Even if such a conflict was a basis for reversal (it is not), no
       such conflict exists because AISIN has mischaracterized the record. Dr. Morin’s report does not state that
       there was an acute injury.



       Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017              Page 9 of 10
       approach and, in any event, the issue is waived. The hearing officer made it

       clear during the hearing that the issue of PPI would be addressed at a later date,

       and at no point did AISIN object to this arrangement. Accordingly, this issue is

       not available to AISIN on appeal. See Washington v. State, 808 N.E.2d 617, 625

       (Ind. 2004) (explaining that, as a general rule, a party may not present an

       argument or issue for the first time on appeal).


[17]   Judgment affirmed.


[18]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1703-EX-433 | September 7, 2017   Page 10 of 10
