FOR PUBLICATION
ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

RONALD L. WILSON                             PAUL L. FIELDS
Badell & Wilson, P.C.                        The Law Offices of the Liberty
Rushville, Indiana                           Mutual Group
                                             Carmel, Indiana

                                                                              FILED
                                                                       Mar 28 2012, 9:20 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                  CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




JANET STEWART,                               )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )      No. 93A02-1108-EX-793
                                             )
RICHMOND COMMUNITY SCHOOLS,                  )
                                             )
      Appellee-Defendant.                    )


       APPEAL FROM THE WORKER’S COMPENSATION BOARD OF INDIANA
                        Linda P. Hamilton, Chairman
                            Cause No. C-178177



                                   March 28, 2012

                             OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Janet Stewart appeals the final judgment of the Worker’s Compensation Board of

Indiana (“the Board”) affirming a Single Hearing Member’s (“the Member”)

determination of permanent partial impairment. The Board had previously reversed the

Member’s determination that Stewart was permanently and totally disabled and had

remanded the determination to the Member to establish Stewart’s degree of permanent

partial impairment. We affirm.

                                           ISSUE

       Stewart raises one issue, which we restate as: whether the Board’s determination

that she is not permanently and totally disabled is supported by sufficient evidence.

                        FACTS AND PROCEDURAL HISTORY

       Stewart worked for the Richmond Community School Corporation (“the School”)

as a physical education teacher. On December 5, 2003, Stewart was spotting a student as

he attempted a gymnastic maneuver. The student fell onto Stewart, causing her to break

her right leg. The injury required surgery and other treatment. Stewart applied for, and

received, worker’s compensation benefits for the surgery and other treatment.

       After surgery, Stewart continued to experience pain and difficulty putting weight

on the leg. On December 5, 2004, she fell at home and broke her right hip. Stewart

contended that the fall was caused by continuing problems with her right leg. She did not

return to work at the School after the hip injury.

       Stewart applied for worker’s compensation benefits related to her hip injury.

After a hearing, the Member determined that the hip injury was related to Stewart’s

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work-related leg injury and that Stewart was permanently and totally disabled. The

School appealed the decision to the full Board. The Board affirmed the Member’s

conclusion that Stewart’s hip injury was a compensable claim. However, the Board

reversed the Member’s determination that Stewart was permanently and totally disabled

and remanded for a calculation of her permanent partial impairment.         Neither party

appealed the Board’s decision.

      On remand, the parties filed factual stipulations and statements of contentions. In

Stewart’s statement of contentions she argued, as she had at the prior hearing, that she

was permanently and totally disabled. In the alternative, she asserted that she “has 39%

impairment.” Appellant’s App. p. 33. The Member concluded that Stewart had sustained

a “39% permanent partial impairment in the amount of $60,100.00.” Id. at 31. Stewart

sought review from the full Board, which affirmed the Member’s determination. This

appeal followed.

                            DISCUSSION AND DECISION

      In reviewing a worker’s compensation decision, an appellate 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.       Christopher R. Brown,

D.D.S., Inc. v. Decatur Cnty. Mem. Hosp., 892 N.E.2d 642, 646 (Ind. 2008).            We

examine the record only to determine whether there is substantial evidence and

reasonable inferences that can be drawn therefrom to support the Board’s findings and

conclusions. Id. As to the Board’s interpretation of the law, an appellate court employs a

deferential standard of review to the interpretation of a statute by an administrative

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agency charged with its enforcement in light of its expertise in the given area. Id. The

Board will only be reversed if it incorrectly interpreted the Worker’s Compensation Act.

Id.

       Stewart argues that the evidence establishes that she is permanently and totally

disabled and the Board’s decision must be reversed. The School contends that Stewart

has waived her claim of permanent and total disability because she did not appeal the

Board’s determination that she was not permanently and totally disabled.

       Stewart has not filed a Reply Brief or otherwise responded to the School’s claim

of waiver. When an appellee fails to file a brief responding to the appellant’s arguments,

we may apply a less stringent standard of review, reversing the judgment below if the

appellant establishes prima facie error. Ferguson v. Stevens, 851 N.E.2d 1028, 1031 (Ind.

Ct. App. 2006). In this case, Stewart’s failure to respond to the School’s claim of waiver

is substantially like an appellee’s failure to file a brief.      The School’s claim, if

meritorious, is dispositive of Stewart’s appeal. Therefore, we determine that the School

need only establish a prima facie case in support of its claim. Prima facie is defined as at

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

       To address the School’s claim of waiver, we must determine whether the Board’s

decision that Stewart was not permanently and totally disabled was a final, appealable

judgment. The School cites no cases in support of its argument and relies solely on

Indiana Code section 22-3-4-8(b) (1986), which governs appeals of the Board’s

decisions. We have found more direct guidance on this subject in our Supreme Court’s

decision in Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053 (Ind. 1996). In that case, a

                                                4
group of injured workers filed a federal class action against the Board, asserting that the

Board improperly refused to issue final awards on compensation claims until the

claimants reached a state of maximum medical improvement. The Board contended that

a decision on temporary benefit issues would not be a final order subject to judicial

review.    The federal court asked our Supreme Court to address several certified

questions, including: “without disposing of all of the issues that may exist or arise

between the parties . . . [m]ay the Board make an enforceable and appealable

determination that temporary total disability benefits have been properly terminated?” Id.

at 1055.

       Our Supreme Court reviewed the governing statutes and determined that the Board

was authorized to issue an order addressing temporary total disability benefits, and that

such an order would be enforceable in court. Next, the Court turned to whether such an

order would be appealable. The Court noted that by statute, a party to a proceeding

before the Board may seek review of an award at the Court of Appeals. See id. at 1056-

57 (citing Ind. Code § 22-3-4-8). Giving the words of the statute their plain and ordinary

meaning, and noting that the Indiana Worker’s Compensation Act is intended to remove

obstacles and provide a more certain, expeditious remedy for injured employees, our

Supreme Court concluded that an order regarding temporary total disability benefits is a

final decision subject to appellate review, even though the parties’ dispute is not yet fully

resolved as to all issues.

       Here, the Board’s reversal of the Member’s determination that Stewart was

permanently and totally disabled is analogous to a ruling on temporary total disability as

                                             5
discussed in Cox. The parties fully argued the question of permanent and total disability,

and nothing remained to be addressed after the Board issued its ruling. In fact, the

Board’s determination that Stewart was not permanently and totally disabled is more

definite than a determination of temporary total disability, because the status of

temporary total disability is subject to further evidentiary developments. Furthermore,

appellate review of the Board’s decision that Stewart was not permanently and totally

disabled would have promoted judicial efficiency, because a reversal of the Board’s

decision would have eliminated the need for further proceedings before the Member.

Consequently, based on the holding in Cox, we conclude that the Board’s determination

that Stewart was not permanently and totally disabled was a final award subject to

appellate review. Stewart failed to seek appellate review of the Board’s determination.

As a result, Stewart has waived any claim of error related to the Board’s decision that she

is not permanently and totally disabled. The School has presented a prima facie case in

support of its claim of waiver and we therefore find no reversible error.

                                     CONCLUSION

       For the reasons stated above, we affirm the judgment of the Board.

       Affirmed.

BAILEY, J., and CRONE, J., concur.




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