                                                          Jan 22 2015, 10:16 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

WILLIAM A. RAMSEY                            KEVIN W. KEARNEY
Murphy Ice LLP                               Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana                          South Bend, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

SIN-MI WARD,                                 )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )       No. 93A02-1405-EX-317
                                             )
UNIVERSITY OF NOTRE DAME,                    )
                                             )
     Appellee-Defendant.                     )


             APPEAL FROM THE WORKER'S COMPENSATION BOARD
                    The Honorable Linda P. Hamilton, Chairman
                 The Honorable A. James Sarkisian, Hearing Member
                            Application No. C-205644



                                  January 22, 2015


                            OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge
                              STATEMENT OF THE CASE

       Sin-Mi Ward appeals from an order of the Worker’s Compensation Board (“the Full

Board”) deciding her application for adjustment of claim against the University of Notre

Dame (“Notre Dame”) for disability benefits arising from a work related injury. The Full

Board adopted the findings and decision of the single hearing member awarding Ward

permanent partial impairment (“PPI”) benefits after finding that she had reached maximum

medical improvement from her injury.

       We affirm.

                                          ISSUES

       Ward presents the following issues for our review:

       I.      Whether the Full Board improperly considered an Independent Medical
               Examination (“IME”) report of a physician who described Ward as
               “Oriental” in the report.

       II.     Whether there is sufficient evidence to support the findings and conclusions
               of the Full Board.

       III.    Whether the Full Board correctly found that Notre Dame was not
               required to reimburse Ward for unauthorized medical treatment.

                            FACTS AND PROCEDURAL HISTORY

       On August 17, 2008, Ward was employed by Notre Dame as a food service associate

in a dining hall. On that date, Ward accidentally slipped on a floor on the premises injuring

her foot and ankle in the course of her employment. Ward reported the injury and Notre

Dame initially accepted Ward’s claim as compensable, authorizing medical treatment for

Ward’s ankle injury. Ward’s treatment included injections, pain management treatment,

and surgery.

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       Ward received authorized medical treatment from August 17, 2008 through

September 3, 2010, from her treating physician, Dr. Todd Graham, M.D. While Ward was

receiving treatment for her injury, she received temporary total disability (“TTD”) benefits

from May 12, 2009 to June 10, 2009 and for missing work on August 24, 2009. Since

Ward’s average weekly wage was $256.48, her TTD rate was $171.07.

       On July 26, 2010, Ward filed an Application for Adjustment of Claim disputing that

her injuries had reached a permanent and quiescent state and that Notre Dame had paid all

the benefits to which Ward was entitled. Among the disputed issues was whether Ward

suffered from Reflex Sympathy Dystrophy (“RSD”) or Complex Regional Pain Syndrome

(“CRPS”) as a result of her ankle injury.

       In a letter dated September 3, 2010, Dr. Graham expressed his opinion that Ward

suffered from chronic residual pain syndrome, but that her injury had reached maximum

medical improvement. Dr. Graham found that Ward had a permanent work restriction

requiring her to work light duty with an allowance each hour to perform activities while

sitting. Ultimately, Dr. Graham assessed a PPI rating of 12% of the left lower extremity,

which corresponded to a 5% rating of the whole person.

       Ward disputed Dr. Graham’s medical opinion, so she filed a petition with the Full

Board for an order granting an IME. The Full Board granted Ward’s petition and she was

examined by the Full Board’s appointed physician, Dr. Shaun Kondamuri, M.D., on

January 24, 2011, at Notre Dame’s expense. Dr. Kondamuri determined that Ward was

not suffering from CRPS and that her injuries had reached maximum medical

improvement. He also noted that Ward had been diagnosed with an anxiety disorder

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“suggesting perhaps a possible psychologic [sic] component to her overall condition.”

Appellant’s App. p. 346.

       Ward also disputed Dr. Kondamuri’s opinion. She retained the services of Dr. Eric

M. Schreier, D.O., who conducted his own IME at Ward’s expense on June 22, 2011. Dr.

Schreier determined that Ward was not suffering from RSD and that her injuries had

reached maximum medical improvement. He agreed with her work restrictions and also

found that Ward appeared to have active depression due to her injury, but had a prior

history of anxiety and depression. Dr. Schreier assessed a PPI rating of 15% of the foot

below the knee which is the equivalent of a 6% PPI rating to the person as a whole. He

further stated, “Her disability as related to this chief complaint appears to be materially

greater than the allowable assigned impairment rating.” Id. at 406.

       On February 2, 2012, Ward was examined by Dr. Joseph Corey, M.D., Ph.D. Dr.

Corey stated, “I think that the patient still may have [RSD] or [CRPS] in the left lower

extremity.” Id. at 375-76. He renewed a referral to Dr. Thomas Cheng, a pain specialist,

to determine if Ward had CRPS. Dr. Cheng examined Ward on February 23, 2012, and

determined that she was suffering from CRPS and that her pain was not currently

controlled. Dr. Cheng again opined that Ward suffered from CRPS when he examined her

on June 21, 2012.

       A hearing was held on November 13, 2013 before a single hearing member. Ward

and her husband, Ken, testified, exhibits were submitted into evidence, and the parties

submitted a Stipulation of Facts and Stipulation of Issues. On November 19, 2013, the

single hearing member entered an order finding that Ward’s injuries had reached maximum

                                            4
medical improvement, and Notre Dame was responsible for payment of only those medical

expenses for authorized treatment incurred and unpaid prior to the determination that

Ward’s injury had reached maximum medical improvement. Ward’s PPI rating was found

to be 6% of the person as a whole. The single hearing member found that Ward’s claim

regarding treatment for her depression, anxiety, or cardiac related issues was not supported

by sufficient medical evidence and found that Ward should bear the expense for that

treatment.

       Ward appealed the single hearing member’s decision to the Full Board, before

which she appeared pro se. At the meeting of the Full Board, Ward confirmed that she had

been physically injured during the course of her employment at Notre Dame and noted that

she had never been physically injured prior to the incident at Notre Dame. Her husband,

Ken, who was also present at the hearing, asked why Dr. Kondamuri was allowed to refer

to Ward as “Oriental” in his IME report and sought to have the report discredited because

of the reference. The Full Board affirmed the findings and conclusions of the single hearing

member. Additional facts will be set forth as needed. Ward now appeals.

                             DISCUSSION AND DECISION

                        I. CONSIDERATION OF IME REPORT

       Ward argues that it was improper for the single hearing member and the Full Board

to consider the IME report of Dr. Kondamuri. More specifically, she challenges Dr.

Kondamuri’s use of the term “Oriental” in his written description of her in the IME report.

For reasons we state below, we find that Ward’s argument has been waived for purposes

of appeal.

                                             5
       Ward, who was represented by counsel at the time her claim was reviewed by the

single hearing member, testified at the hearing but made no claim at that time challenging

Dr. Kondamuri’s report. Ken testified that he did not believe that the physician who

examined Ward was Dr. Kondamuri because the physician they met in the waiting room

appeared to be a different person than the person depicted in the picture of Dr. Kondamuri

on display in the waiting room. Prior to the hearing before the single hearing member,

Ward had stipulated to the admissibility of facts and exhibits, including Dr. Kondamuri’s

report. Therefore, the arguments made before the single hearing member did not concern

the admissibility of the report containing Dr. Kondamuri’s opinion about Ward’s injury,

and the descriptive reference was not challenged before the single hearing member.

       “Courts generally favor stipulations that admit certain designated facts for the

purpose of simplifying and expediting litigation.” Albright v. Four Winds Intern., 950

N.E.2d 1251, 1258 (Ind. Ct. App. 2011), trans. denied (2012). Here, the issue was the

status of Ward’s injury, not any racial bias in favor of or against Ward. The parties

stipulated to the admissibility of the reports containing various doctors’ opinions of the

status of Ward’s injury. Therefore, the argument has been waived for purposes of review.

       Waiver notwithstanding, the descriptive reference had no bearing on Dr.

Kondamuri’s evaluation of Ward’s injury and condition. Ward points to no evidence that

Dr. Kondamuri’s use of the term undermines the validity of his opinion on the nature and

extent of her injury. Further, any claim of bias would have been relevant to the evaluation

of Dr. Kondamuri’s credibility, a task left for the single hearing member. The Full Board’s

Statement of Fact dated March 10, 2014, explains that no new evidence is ever offered at

                                            6
Full Board hearings as their task is to determine whether the single hearing member’s

decision comports with the Worker’s Compensation system, established case law, and

recognized practices. The Full Board considered the arguments presented by both sides

and issued its decision after reviewing the record. We find no error in the decision of the

single hearing member or the Full Board on this issue.

                        II. SUFFICIENCY OF THE EVIDENCE

       Ward also challenges the sufficiency of the evidence supporting the single hearing

member’s and the Full Board’s award. More specifically, Ward disagrees with the Full

Board’s award because she contends there is evidence that she suffers from RSD or CRPS,

and the Full Board found that she had presented insufficient evidence to support that claim.

       Before reaching the issues related to the Full Board’s decision, however, we must

determine the appropriate standard of review from the Full Board’s award which was

reached based on a paper record; de novo as is suggested by Ward, or deferential as is

suggested by Notre Dame. For reasons we explain below, we apply a standard of review

that is deferential to the Full Board’s award.

       In Harris v. United Water Servs., Inc., 946 N.E.2d 35 (Ind. Ct. App. 2011), an appeal

from the grant of a motion to dismiss, one of the issues we addressed was the appropriate

standard of review to be used in an appeal from an administrative agency’s ruling based on

a paper record. We acknowledged that this Court has applied two different standards of

review in appeals from an administrative agency’s ruling in that context. In Gerlach v.

Woodke, 881 N.E.2d 1006, 1009 (Ind. Ct. App. 2008), aff’d on reh’g, trans. denied, we

applied the Trial Rule 12(B)(1) de novo standard of review. In Fitzgerald v. U.S. Steel,

                                                 7
892 N.E.2d 659, 662 (Ind. Ct. App. 2008), we applied the more deferential standard of

review to the agency’s determination.

       Since those decisions, our Supreme Court’s opinion in N. Ind. Pub. Serv. Co. v. U.S.

Steel Corp., 907 N.E.2d 1012 (Ind. 2009) was handed down, and we have found that

decision instructive on the appropriate standard of review to be applied. In that case, the

issue was the agency’s decision to grant summary judgment for U.S. Steel in a dispute

concerning the interpretation of a settlement agreement previously approved by the agency.

In Harris we acknowledged that while “our supreme court [in NIPSCO] was also reviewing

a paper record . . . it determined that a more deferential standard should apply in recognition

of the agency’s expertise in the subject matter[,]” and applied that standard of review. 946

N.E.2d at 39.

       Although this appeal does not concern a ruling on a motion to dismiss or a ruling on

a motion for summary judgment, but rather, an award by the Full Board based on a paper

record, we apply the more deferential standard of review from NIPSCO that was also

applied in Harris. This standard is also compatible and more consistent with the foundation

of the statutory language concerning appeals from awards by the Full Board. Indiana Code

section 22-3-4-8(b) (1986) states that “[a]n award by the full board shall be conclusive and

binding as to all questions of the fact, but either party to the dispute may . . . appeal to the

court of appeals for errors of law under the same terms and conditions as govern appeals

in ordinary civil actions.”

       We have stated the more deferential standard of review as follows:

       In reviewing a worker’s compensation decision, an appellate court is bound

                                               8
       by the factual determinations of the Board and may not disturb them unless
       the evidence is undisputed and leads inescapably to a contrary conclusion.
       We examine the record only to determine whether there is substantial
       evidence and reasonable inferences that can be drawn therefrom to support
       the Worker’s Compensation Board’s findings and conclusion. We will not
       reweigh the evidence or reassess witness credibility. As to the Board’s
       interpretation of the law, an appellate court employs a deferential standard of
       review of the interpretation of a statute by an administrative agency charged
       with its enforcement in light of its expertise in the given area. The Board
       will only be reversed if it incorrectly interpreted the Act.

Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009) (citations and

quotations omitted), trans. denied.

       The single hearing member and the Full Board considered the medical evidence

presented by both sides and found certain evidence to be more credible. In particular, the

single hearing member and the Full Board found the medical reports of Dr. Kondamuri,

Dr. Graham, and Dr. Schreier to be more credible and persuasive than other evidence

presented. Dr. Graham found that Ward had reached maximum medical improvement and

that she suffered from what he described as chronic residual pain syndrome.              Dr.

Kondamuri found that Ward had reached maximum medical improvement and was not

suffering from CRPS. Dr. Schreier found that Ward was not suffering from RSD and had

reached maximum medical improvement. Although there was additional evidence from

other doctors who found that Ward suffered from CRPS or RSD, we cannot say that the

evidence before the single hearing member and the Full Board was undisputed and led to

a contrary conclusion. We will not reweigh the evidence or reassess witness credibility.

There was sufficient evidence to support the Full Board’s award, which used the higher

rating given by Dr. Schreier, the physician independently hired by Ward to conduct an


                                             9
IME.

                    III. UNAUTHORIZED MEDICAL TREATMENT

       Ward also disputes the Full Board’s decision that Notre Dame was not required to

pay for unauthorized medical treatment Ward received.           Ward’s authorized medical

treatment included injections, pain management treatment, and surgery. She also received

treatment from other physicians regarding her ankle pain, but that treatment was not

authorized by the Full Board and the examinations occurred after three doctors had

determined that Ward had reached maximum medical improvement for her injury.

Therefore, the Full Board’s finding that Notre Dame was not responsible for any past or

future unauthorized medical treatment was supported by the record.

       Likewise, the Full Board’s determination that Ward presented insufficient medical

evidence to support her claim that Notre Dame should bear the expense of Ward’s treatment

for depression, anxiety, and cardiac issues, is supported by the record. The Full Board

found that Ward did not provide sufficient evidence that those conditions arose out of or in

the course of her employment. Although there was evidence in the medical reports that

Ward was receiving treatment for those conditions, the Full Board agreed with the single

hearing member that there was insufficient evidence to conclude that those conditions arose

from Ward’s work injury. Ward’s argument amounts to an invitation to reweigh the

evidence. We will not do so on appeal. See Wright Tree Serv., 907 N.E.2d at 186.

                                      CONCLUSION

       In light of the above, we affirm the trial court’s decision.

       Affirmed.

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MATHIAS, J., and BROWN, J., concur.




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