Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                           Feb 17 2014, 11:12 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                           ATTORNEY FOR APPELLEE:

RICHARD FOX                                        ANTHONY K. FINALDI
STEVEN A. GUSTAFSON                                Fogle Keller Purdy, PLLC
The Law Office of Richard R. Fox                   Louisville, Kentucky
New Albany, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

LORI HARROLD,                                      )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )       No. 93A02-1306-EX-564
                                                   )
L & D MAILMASTERS,                                 )
                                                   )
       Appellee-Defendant.                         )


          APPEAL FROM THE INDIANA WORKERS COMPENSATION BOARD
                     The Honorable Linda Hamilton, Chairman
                              Cause No. C-202433


                                       February 17, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

         Lori Harrold (“Harrold”) appeals the order of the Worker’s Compensation Board

(“the Board”) denying her application for adjustment of her worker’s compensation

claim.

         We affirm.

                                          ISSUE

         Whether the Board erred in denying Harrold’s application for adjustment of
         her worker’s compensation claim.

                                          FACTS

         Harrold was an employee of L&D Mailmasters (“L&D”) in a printing center. As a

part of her regular duties, Harrold would load paper into laser printers, print requested

documents, and stack finished print requests on carts.

         On March 24, 2009, Harrold was working on a project that required her to remove

thick newspapers from a conveyor belt, stack them quickly, and then pass them to a co-

worker. After doing this for some time, Harrold began to experience severe pain in her

back and hip. Harrold notified L&D of the injury, and L&D accepted it as an injury in

the course of her employment. L&D provided Harrold with treatment from several

physicians and paid her temporary total disability benefits from June 29, 2009 through

December 21, 2009.

         Dr. Michael Doyle (“Dr. Doyle”) treated Harrold’s injury first. His examination,

including a magnetic resonance image (“MRI”), showed a degenerative back disease that

was aggravated by a repetitive lumbar strain. Dr. Doyle recommended nonoperative


                                             2
treatment, including “an intensive core strengthening program combined with some

activity modifications.” (Tr. Vol. III 196). Dr. Doyle also thought that Harrold would

benefit from epidural steroid blocks. Dr. Doyle referred Harrold to another doctor for the

epidural injections. Harrold ultimately chose not to have the injections because she was

afraid.

          Harrold continued her treatment with Dr. David Steinberg (“Dr. Steinberg”). Dr.

Steinberg examined Harrold and her previous treatment records.         His diagnosis and

recommended treatment mirrored that of Dr. Doyle:          physical therapy and epidural

steroid blocks. Harrold again declined the injections but did participate in physical

therapy three times a week and used transcutaneous electrical nerve stimulation

treatment.     Dr. Steinberg’s records reflect Harrold mentioning that she might seek

“surgical opinions outside of the realm of worker’s comp.” (Tr. Vol. III 209).

          Dr. Steinberg found Harrold to be at maximum medical improvement on

December 15, 2009, and, as previously mentioned, her temporary total disability

payments ended shortly thereafter. Harrold disagreed with Dr. Steinberg’s findings and

the termination of her benefits. On December 30, 2009, Harrold filed an “Application for

Adjustment of Claim” with the Board and requested an independent medical

examination. The Board assigned Dr. John Guarnaschelli (“Dr. Guarnaschelli”), and he

conducted the examination March 3, 2010.          Dr. Guarnaschelli also concluded that

Harrold had reached maximum medical improvement.

          On March 23, 2011, without authorization from L&D or its worker’s

compensation insurance carrier, Harrold consulted Dr. Rolando Puno (“Dr. Puno”) for

                                             3
continued issues with her back. Dr. Puno’s examination, diagnosis, and recommended

treatment were similar to Dr. Doyle’s and Dr. Steinberg’s. In follow-up questions to his

examination from L&D, Dr. Puno stated that Harrold’s prior treatment was medically

reasonable and appropriate, that he did not recommend surgery because she had not tried

epidural steroid blocks, and, at that time, surgery was not medically necessary.

       In May of 2011, Harrold, again without authorization from L&D or its worker’s

compensation insurance carrier, returned to Dr. Doyle and told him that Dr. Puno

recommended surgery. Dr. Doyle performed fusion surgery to Harrold’s lower back on

May 19, 2011.

       On May 8, 2012, at the request of L&D, Dr. Robert Sexton (“Dr. Sexton”)

examined Harrold. Dr. Sexton concluded that Harrold’s surgery was not necessary, nor

was it related to her accident at work. Dr. Sexton also stated that Harrold had reached

maximum medical improvement no later than August 6, 2009.

       Harrold’s claim was heard before a single hearing member on September 6, 2012.

On November 21, 2012, the single hearing member issued a decision finding that Harrold

had reached maximum medical improvement on December 15, 2009, that any treatment

after that date was not related to her work accident, and that Harrold did not sustain any

permanent partial impairment as a result of the work accident. Harrold applied for a

review to be conducted by the entire Board. The parties tendered briefs and presented

argument before the full Board on May 13, 2013. On June 13, 2013, the Board entered

an order adopting and affirming the single hearing member’s decision. Harrold now

appeals.

                                             4
                                      DECISION

      In reviewing a challenge to a decision of the Board, this Court is 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. Kovatch v. A.M. General, 679

N.E.2d 940, 942 (Ind. Ct. App. 1997), trans. denied. We neither reweigh the evidence,

nor judge the credibility of the witnesses. Id. at 943. “We must disregard all evidence

unfavorable to the decision and must consider only the evidence and reasonable

inferences therefrom which support the Board’s findings.” Id. The burden rests with the

claimant to prove a right to compensation under the Worker’s Compensation Act.

Danielson v. Pratt Industries, Inc., 846 N.E.2d 244, 247 (Ind. Ct. App. 2006). If the

Board reaches a legitimate conclusion from the evidentiary facts, we cannot disturb that

conclusion, although we may prefer another legitimate result. R.L. Jefferies Trucking Co.

v. Cain, 545 N.E.2d 582, 590 (Ind. Ct. App. 1989), trans. denied. “Although we are not

bound by the Board’s interpretation of the law, we will reverse the Board’s decision only

if the Board incorrectly interpreted the [Worker’s Compensation] Act.”        Krause v.

Indiana University-Purdue University at Indianapolis, 866 N.E.2d 846, 851 (Ind. Ct.

App. 2007), trans. denied.

      In her brief, Harrold frames the issue as whether her injury is compensable, and

claims her surgery was authorized because a physician previously approved by L&D

performed the procedure. However, L&D provided Harrold treatment from multiple

doctors and paid temporary total disability payments for six months. L&D’s primary



                                           5
objection, and the dispositive question, is whether the subsequent surgery, not the injury

itself, is compensable.

       Indiana Code § 22-3-3-4(d) provides the following:

       If, because of an emergency, or because of the employer’s failure to
       provide an attending physician or surgical, hospital, or nursing services and
       supplies, or treatment by spiritual means or prayer, as required by this
       section, or because of any other good reason, a physician other than that
       provided by the employer treats the injured employee during the period of
       the employee’s temporary total disability, or necessary and proper surgical,
       hospital, or nurses’ services and supplies are procured within the period, the
       reasonable cost of those services and supplies shall, subject to the approval
       of the worker’s compensation board, be paid by the employer.

In interpreting this section, our Indiana Supreme Court’s opinion in Daugherty v.

Industrial Contracting & Erecting, 802 N.E.2d 912 (Ind. 2004) is instructive.

       There, Daugherty injured his knee after a fall at work. Industrial Contracting &

Erecting (“IC & E”) provided temporary total disability benefits along with extensive

medical care and treatment from several doctors.            One doctor determined that

Daugherty’s injury was permanent, assigned him a permanent partial impairment rating

of ten percent (10%), and released him from further care or treatment. Daugherty still

experienced pain in his knee and requested the Board to appoint an Independent Medical

Examiner. The Board did so, and, after an examination, the doctor concluded that

Daugherty’s injury had reached its maximum medical improvement.               On his own,

Daugherty contacted an orthopedic surgeon at the Cleveland Clinic.            The surgeon

recommended that Daugherty have a total knee replacement surgery. Daugherty notified

IC & E’s worker’s compensation insurance carrier and told them of the surgeon’s

recommendation. The insurance carrier would not authorize the surgery at that time.

                                             6
Daugherty went forward with the surgery, which proved to be successful, and he returned

to work.

       Our Supreme Court held that IC & E was responsible for the costs of Daugherty’s

surgery under the “other good reason” provision of I.C. § 22-3-3-4(d).         The Court

adopted the following test to determine whether unauthorized medical treatment falls

under the “other good reason” exception:

       [I]f the employee, without authorization but in good faith, obtains medical
       treatment different from that provided by the employer, and it is determined
       that the treatment provided by the employer was inadequate treatment for
       the employee’s condition and the unauthorized treatment received by the
       claimant was medically reasonable and necessary treatment, the employer
       should be responsible, notwithstanding the lack of prior approval by the
       employer.

Daugherty, 802 N.E.2d at 918-19. However, in adopting this test, the Supreme Court still

acknowledged the rule that an employee is not free to seek additional treatment at the

employer’s expense or to see physicians other than those provided by the employer. Id.

(citing K-Mart v. Morrison, 609 N.E.2d 17, 33 (Ind. Ct. App. 1993); Richmond State

Hosp. v. Waldren, 446 N.E.2d 1333, 1336 (Ind. Ct. App. 1983); Perez v. United States

Steel Corp., 172 Ind. App. 242, 359 N.E.2d 925, 927 (1977). The Court also continued to

caution that:

       When an employee seeks treatment other than that provided by the
       employer or the Board, he or she does so at his or her own peril and risks
       not being reimbursed. The mere fact that the unauthorized treatment is an
       acceptable method of treating the condition does not mean that the
       employer should pay for the treatment.

Daugherty, 802 N.E.2d at 917. Applying the adopted rule to Daugherty’s case,

our Supreme Court found that he satisfied the “other good reason” provision

                                            7
because Daugherty sought authorization from IC & E’s insurance carrier, IC & E’s

treatment of his injury was found to be inadequate, and the Board found the knee

replacement surgery to be reasonable and appropriate.

       Applying the same principles from Daugherty to Harrold’s claim, we find

that L&D is not required to pay for Harrold’s surgery. First, Harrold never sought

approval from L&D or the Board for her surgery. In fact, Dr. Steinberg’s records

reflect that Harrold planned to explore surgical options outside of worker’s

compensation. Next, every doctor that treated Harrold recommended physical

therapy and epidural steroid injections. Harrold participated in physical therapy,

but she did not accept any injections. Harrold cannot claim inadequate treatment

from physicians provided by L&D when she, on her own accord, did not avail

herself of all treatment offered. Finally, at the hearing, Harrold testified that Dr.

Puno recommended surgery, and Harrold communicated this recommendation to

Dr. Doyle.    However, Dr. Puno clearly states in his records that he did not

recommend surgery because Harrold never took advantage of the epidural

injections. Harrold has not shown that her surgery is compensable under I.C. §

22-3-3-4(d). Accordingly, we find that the Board did not err in denying Harrold’s

adjustment claim for her surgery.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




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