                                                                                           FILED
MEMORANDUM DECISION                                                                   May 12 2016, 8:28 am

                                                                                           CLERK
Pursuant to Ind. Appellate Rule 65(D), this                                            Indiana Supreme Court
                                                                                          Court of Appeals
Memorandum Decision shall not be                                                            and Tax Court


regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
James E. Ayers                                          Kathryn A. Moll
Wernle Ristine & Ayers                                  Nation Schoening Moll, P.C.
Crawfordville, Indiana                                  Fortville, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Luis Rivera,                                            May 12, 2016
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        93A02-1508-EX-1256
        v.
                                                        Appeal from the Full Worker’s
                                                        Compensation Board of Indiana
American Fibertech,
                                                        The Honorable Linda Peterson
Appellee-Respondent.                                    Hamilton, Chairman
                                                        Trial Court Cause No.
                                                        C-216416



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016             Page 1 of 12
                                   STATEMENT OF THE CASE

[1]   Appellant-Claimant, Luis Rivera (Rivera), appeals from the ruling of the

      Worker’s Compensation Board (Board) denying his application for adjustment

      of claim.


[2]   We affirm.


                                                    ISSUE

[3]   Rivera raises one issue on appeal, which we restate as: Whether the Board

      erred in denying Rivera’s application for adjustment of claim.


                             FACTS AND PROCEDURAL HISTORY


[4]   On August 10, 2011, Rivera, while employed by American Fibertech

      Corporation (Fibertech), sustained an injury on his right foot after stepping on a

      nail. Shortly thereafter, Rivera’s puncture wound became infected with

      cellulitis, an inflammation of the skin, and from August 18, 2011, to August 21,

      2011, Rivera received in-patient treatment at Franciscan St. Elizabeth Health in

      Crowsfordville, Indiana. After he was discharged, Rivera continued receiving

      authorized medical treatment from Dr. David Sullivan (Dr. Sullivan) of Greater

      Lafayette Foot Care. On October 20, 2011, Dr. Sullivan returned Rivera to

      sedentary work.


[5]   In a medical report dated December 9, 2011, Dr. Sullivan noted that Rivera had

      returned for a cellulitis evaluation. Dr. Sullivan further noted that the cellulitis

      had resolved, but stated that Rivera had “persistent edema with pain” and


      Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 2 of 12
      “Type II diabetes with neuropathy.” (Appellant’s App. p. 70). In addition, Dr.

      Sullivan stated that “due to the continued complaints of swelling, I ordered a

      venous Doppler. . . . [I]f the Doppler is negative for deep vein thrombosis, then

      the patient is released to return to work full-duty without restrictions; otherwise,

      he will be referred for further care of DVT.” (Appellants App. p. 70).


[6]   In a final report dated December 21, 2011, Dr. Sullivan noted in relevant part

      that “in accordance with my plan of treatment from his last visit on

      12/09/2011, the patient is discharged from my care and is able to return to

      work. He is currently at maximum medical improvement for this problem. No

      permanent or partial impairment will be endured by this patient as of my last

      examination.” (Appellant’s App. p. 71).


[7]   The record shows that Rivera had pre-existing Type II diabetes. On February

      21, 2012, February 24, 2012, March 5, 2012, and March 23, 2012, Rivera

      received treatment for his diabetes at Alivio Medical Center. Rivera’s physician

      noted that Rivera’s diabetes was poorly managed—i.e. Rivera was not taking

      any medication to control his diabetes and was put on medication. Further, the

      record shows that in two of those visits, Rivera was treated for dermatophytosis

      of the foot, a fungal infection, but the report fails to stipulate which foot was

      infected, nor does it offer any causal link to Rivera’s prior work injury.


[8]   On July 19, 2012, Rivera filed an application for adjustment of claim. In

      October of 2013, Rivera obtained a one-time medical evaluation from Dr. Terry

      Mandel (Dr. Mandel), who stated that even though Rivera’s foot was healed by


      Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 3 of 12
      December 2011, Rivera continued to experience pain and swelling on his right

      foot and ankle. Dr. Mandel further noted that

              There was discoloration involving three-quarters of the lower right leg.
              There is diminished circulatory. . . . The pedal pulse was 2/4,
              posterior tibial pulse was diminished at 1/4. There was diminished
              sensation involving the lower two-thirds of the right leg.

              ****
              My diagnostic impressions are that of chronic right leg and foot
              dysfunction due to the resulting puncture wound with cellulitis and
              ulceration all caused by his work related injury of August 10, 2011. . . .
              [Rivera] was treated adequately and satisfactorily but unfortunately he
              does have chronic problems as outlined above. At this time, I am
              rendering an impairment rating. Utilizing the book “Guides to the
              Evaluation of Permanent Impairment”, 6th Edition by the AMA,
              referring you to table 16-2, page 501, the patient qualifies for a 13%
              lower extremity impairment on the right, . . . [and] he qualifies for a
              5% whole body impairment. . . . In terms of estimated cost of future
              treatment, he will need to use [] anti[-]inflammatory and analgesic
              medications. Estimated costs of these medications using generic
              medications would be approximately $70 a month for the remainder of
              his life. I also feel he may need a cane down the road to help aid in his
              ambulation and his steadiness as well.


      (Appellant’s App. p. 34).


[9]   On November 20, 2014, both parties submitted joint stipulations of facts and

      issues to the single hearing member. Rivera’s claim was heard before a single

      hearing member on November 20, 2014. On January 5, 2015, the single

      hearing member issued his findings of fact and conclusions thereon.

      Specifically, he found that

              5. [Rivera] had a condition of poorly controlled diabetes mellitus with
              neuropathy predating the work injury of August 10, 2011, as indicated
      Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 4 of 12
        by medical records from Franciscan St. Francis [Health] and from
        Alivio Medical Center.

        6. Because of [Rivera’s] diabetic condition, the puncture wound to his
        right foot developed an ulceration and cellulitis, which was treated at
        Franciscan St. Elizabeth Health by Dr.[] Sullivan.

        7. [Fibertech] provided authorized treatment by Dr. Sullivan . . .

        ****
        9. The work related conditions for which Dr. Sullivan provided
        authorized treatment, including the puncture wound, ulceration, and
        cellulitis, resolved by the time Dr. Sullivan made his finding of
        maximum medical improvement on December 21, 2011.

        10. Medical records from Alivio Medical Center regarding medical
        treatment . . . [Rivera] obtained with regards to his diabetes between
        February 21, 2012 and March 23, 2012[], do not indicate any ongoing
        issues, problems or complaints with the puncture wound of the right
        foot, ulceration of the wound, or cellulitis.

        11. [Rivera] was evaluated by family practitioner Dr. Mandel on one
        occasion on October 18, 2013.

        12. The medical report by Dr. Mandel fails to indicate he was
        provided with or reviewed any medical records from Alivio Medical
        Center regarding [Rivera’s] condition after he was found to be at a
        maximum medical improvement by Dr. Sullivan and before he saw
        Dr. Mandel in October of 2013.

        13. Dr. Sullivan’s assessment of a 0% permanent partial impairment
        for the puncture wound to the right foot is supported by the medical
        reports from Alivio Medical Center relative to medical evaluations of
        [] Rivera between February 21, 2012 and March 23, 2013.

        14. [Rivera] is not entitled to future medical treatment with anti-
        inflammatory and analgesic medication or any benefits due to his
        allegation of the need for the use of a cane in the future, and [Rivera’s]
        claim for such benefits under the Act are not supported by Dr.
        Mandel’s report.

Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 5 of 12
                                                 CONCLUSION

               1. [Rivera] has sustained 0% permanent partial impairment.

               2. [Rivera] has failed to meet his burden of providing the need for
               future medical treatment causally related to his work injury, or the
               need for palliative care to limit or reduce any claimed impairment.




       (Appellant’s App. p. 38).


[10]   Rivera applied for a review to be conducted by the Board. On July 29, 2015,

       the Board entered an order adopting and affirming the single hearing member’s

       decision.


[11]   Rivera now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                             A. Standard of Review

[12]   The Indiana Worker’s Compensation Act (the Act) provides compensation for

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

       employment. Ind. Code § 22-3-2-2. 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. Gen., 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
       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 6 of 12
       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 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 . . .

       Act.” Krause v. Ind. Univ.-Purdue Univ. at Indianapolis, 866 N.E.2d 846, 851 (Ind.

       Ct. App. 2007), trans. denied.


[13]   The main issues to be decided by the single hearing member, and later the

       Board, were (1) the amount and extent of permanent partial impairment for

       Rivera’s work related injury; and (2) Rivera’s entitlement to future medical

       treatment for his work-related injury.


                                     I. Permanent Partial Impairment

[14]   With regard to the amount and extent of permanent partial impairment, Rivera

       presented a one-time evaluation conducted by Dr. Mandel in October of 2013.

       In that report, Dr. Mandel stated that Rivera’s work-related puncture wound

       qualified him for a 13% percent lower extremity impairment on the right, and a

       5% whole body impairment. Dr. Mandel also assessed Rivera’s monthly cost of

       pain medication at $70. In addition, Rivera submitted medical records from


       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 7 of 12
       Alivio Medical Center suggestive of him receiving treatment on at least four

       separate occasions.


[15]   Fibertech, in turn, presented Dr. Sullivan’s final medical report dated December

       21, 2011, indicating that Rivera’s foot was healed and that no permanent partial

       impairment had been borne as a result of the work injury. Additionally,

       Fibertech presented Dr. Sullivan’s report dated January 20, 2014, regarding

       Rivera’s permanent partial impairment rating. The report stated:

               1) I treated [Rivera] . . . for a very slow healing ulcer secondary to a
                  puncture wound from a nail that he sustained at work on August
                  10, 2011. He had delayed healing of this wound due to diabetic
                  issues as well as non-compliance with my recommendations of
                  staying off of foot. His family stated that he was not doing a very
                  good job at staying in his wheelchair when he was in his home.
                  Eventually[,] the wound was healed by his appointment on
                  December 14, 2011. He still had some swelling and redness. X-
                  rays were normal on that date.


               2) He continued to have redness and swelling over the course of the
                  next 4-8 weeks. Prior to discharge we sent him for venous Doppler
                  to rule out deep vein thrombosis which apparently showed such. I
                  have not seen the patient after this study was performed as he was
                  discharged from my care.


               3) In regard to his pre-existing diabetic issues must be taken into
                  account as well as poor compliance and poor control of his
                  diabetes. If he was not a diabetic, it is difficult to state for sure but
                  most likely he would have had much easier healing and resolution
                  of this problem. Therefore, I still believe that 0% [permanent
                  partial impairment] rating is appropriate.


               4) When I last addressed [] Rivera’s issues[,] it was actually
                  December 9, 2011. Your letter states that I last evaluated him on

       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016    Page 8 of 12
                   December 21, 2011[,] but that is the date of the letter I sent to you
                   at that time when I stated that he had no permanent or partial
                   impairment and was at maximum medical improvement for the
                   problem for which I still agree other than ongoing care for his
                   diabetes. I do not see the need for any ongoing treatment for this
                   particular injury.


       (Appellant’s App. p. 15).


[16]   The Act enables the Board to award treatment, services, and supplies as

       necessary to limit or reduce the amount and extent of an employee’s

       impairment. I.C. § 22-3-3-4(c). Impairment means an injured employee’s loss

       of physical function. Talas v. Correct Piping Co., 435 N.E.2d 22, 26 (Ind. 1982).


[17]   In December 2011, Dr. Sullivan rendered a 0% permanent partial impairment

       rating and indicated that Rivera was at a maximum medical improvement. The

       record shows that between February 2012 and March 2012, Rivera visited

       Alivio Medical Center four times. Rivera’s chief complaints and treatment

       were associated with his diabetes. Notably, in two of those visits, there was a

       notation of him having a fungus infection to one foot, but the report is unclear

       as to which foot was infected or if the infection was related to his 2011 work

       injury. In October 2013, almost two years after Rivera’s work injury, Dr.

       Mandel’s evaluation revealed that even though Rivera’s foot was healed as of

       December 2011, his impression was that Rivera suffered from “chronic right leg

       and foot dysfunction” due to his former work injury. (Appellant’s App. p. 34).

       As such, Dr. Mandel rendered a 13% lower extremity impairment on the right,

       and a 5% whole-person impairment. In the negative award, the single hearing


       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 9 of 12
       member found that the one-time medical assessment by Dr. Mandel in October

       2013, almost two years after Rivera’s injury, coupled with the fact that the

       treatment Rivera sought at Alivio Medical Center between February 2012 and

       March 2012 was unrelated to his work-related injury, could not trump Dr.

       Sullivan’s evaluation of 2011 indicating that Rivera was fully healed and had

       suffered no impairment as a result of the work injury.


[18]   Here, it was reasonable for the Board to give more weight to Dr. Sullivan’s

       evaluation, the treating physician, than to Dr. Mandel’s one-time evaluation

       conducted two years after Rivera’s work injury. Because there was evidence to

       support the Board’s decision, we are without authority to reverse.


                                       II. Future Medical Treatment

[19]   Next, we turn to the issue of whether Rivera is entitled to future medical

       treatment. At the evidentiary hearing, Rivera stated that pain persisted after he

       was discharged from Dr. Sullivan’s care in 2011. Rivera presented Dr.

       Mandel’s medical evaluation of 2013 indicating that he continued to experience

       pain and swelling on his right foot and ankle. Also, Dr. Mandel stated that he

       had a 13% lower right impairment and a 5% whole body impairment.

       Accordingly, Dr. Mandel indicated that Rivera required anti-inflammatory and

       analgesic medicine to manage his foot pain. Dr. Mandel estimated the cost of

       medication to be approximately $70 a month.


[20]   Notwithstanding his claim, the single hearing member found that Rivera’s

       claims were unsupported by the evidence. As noted in the foregoing, Dr.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 10 of 12
       Sullivan discharged Rivera from his care and treatment in December 2011, at

       which time, Rivera work-related injury had been resolved. More significantly,

       Dr. Sullivan indicated that Rivera had reached a maximum medical

       improvement status and had not endured any impairment as a result of his

       work injury. Dr. Sullivan’s medical record offered in 2014 acknowledged that

       Rivera’s slow healing of the wound and secondary cellulitis was attributed to

       his pre-existing diabetes, and because Rivera failed to conform to the doctor’s

       recommendation to stay off his foot. Nevertheless, Dr. Sullivan reiterated that

       a 0% impairment was appropriate. In addition, during his 2012 hospital visits

       at Alivio Medical Center, he presented no complaints associated with his

       former work injury.


[21]   We note that a finding of maximum medical improvement establishes that the

       patient has reached his maximum healing potential. Cox v. Worker’s

       Compensation Bd., 675 N.E.2d 1053, 1054 (Ind. 1996) (“This concept, also

       designated ‘quiescence’ in the jargon of worker’s compensation, essentially

       means that the worker has achieved the fullest reasonably expected recovery.”).

       In addition, as indicated above, impairment means an injured employee’s loss

       of physical function. See Talas, 435 N.E.2d at 26.


[22]   Here, we find that a finding of maximum medical improvement and the 0%

       impairment allows an inference that future treatment is unnecessary for Rivera.

       The single hearing member concluded that Rivera did not suffer any

       impairment due to his work-related injury, and he was at a maximum medical

       improvement status as of December 2011, thus requiring no future treatment.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 11 of 12
       Accordingly, the Board did not err in denying Rivera’s application for

       adjustment of claim.


                                               CONCLUSION


[23]   Based on the foregoing, we conclude that the Board did not err in denying

       Rivera’s application for adjustment of claim.


[24]   Affirmed.


[25]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 93A02-1508-EX-1256 | May 12, 2016   Page 12 of 12
