 Pursuant to Ind. Appellate Rule 65(D), this
 Memorandum Decision shall not be
 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:

NATHAN B. MAUDLIN                                    STEPHEN S. LAVALLO
Klezmer Maudlin, P.C.                                Kahn, Dees, Donovan & Kahn, LLP
New Harmony, Indiana                                 Evansville, Indiana




                                                                              Apr 09 2013, 9:25 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM GORDON,                                      )
                                                     )
       Appellant-Claimant,                           )
                                                     )
               vs.                                   )     No. 93A02-1211-EX-910
                                                     )
TOYOTA MOTOR MANUFACTURING                           )
OF INDIANA,                                          )
                                                     )
       Appellee-Employer.                            )


    APPEAL FROM THE FULL WORKER’S COMPENSATION BOARD OF INDIANA
               The Honorable Linda Peterson Hamilton, Chairperson
                              Case No. C-193891



                                           April 9, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       William Gordon (“Gordon”) appeals the decision of the Full Worker’s

Compensation Board of Indiana (“the Board”), adopting and affirming the decision of the

Single Hearing Member, contending that the Board erred by denying a portion of

Gordon’s claim for temporary total disability (“TTD”) benefits.

       We vacate and remand.

                       FACTS AND PROCEDURAL HISTORY

       The facts stipulated to by the parties indicate that Gordon was employed by

Toyota Motor Manufacturing of Indiana (“Toyota”) on November 26, 2007, and earned

an average weekly wage in excess of the statutory maximum. On that date, Gordon

suffered an injury, affecting his left shoulder and neck, in an accident while in the course

of his employment.     Toyota acknowledged Gordon’s accidental injury and paid for

certain medical services and supplies. On July 16, 2008, a doctor furnished by Toyota,

Dr. Weaver, took Gordon off work.

       On July 24, 2008, Dr. Titzer, another physician furnished by Toyota, released

Gordon to return to work with restrictions. Although Gordon attempted to return to

work, he left his employment on August 5, 2008.                Subsequently, one doctor

recommended no further treatment for Gordon’s neck and one doctor recommended no

more treatment for Gordon’s shoulder. On September 29, 2009, however, Dr. Wilson

recommended additional treatment for Gordon’s shoulder. On October 20, 2009, Toyota

notified Gordon that it would not provide the treatment recommended by Dr. Wilson. On

June 7, 2010, Dr. Miller performed surgery on Gordon’s shoulder. Dr. Miller expected



                                             2
Gordon to return to full activity six months after the surgery and to have a full recovery

without impairment.

         On August 11, 2008, Gordon had filed an Application for Adjustment of Claim

related to his injury. Single Hearing Member Andrew S. Ward heard Gordon’s claim on

October 17, 2011, and on May 9, 2012, ordered Toyota to pay for certain medical

treatment and to pay thirty weeks of TTD benefits. The following issues were presented

for the Single Hearing Member’s review: 1) whether Gordon was entitled to an award of

medical services and supplies, and if so, the medical services and supplies to which he

was entitled; and 2) whether Gordon was entitled to an award of TTD benefits, and if so,

the period of time to which he was entitled to those benefits.

         On June 5, 2012, Gordon sought review of his claim by the Board and on October

11, 2012, by a vote of 6-1, the Board adopted and affirmed the Single Hearing Member’s

award.

                            DISCUSSION AND DECISION

         Gordon appeals claiming that the Board erred by not awarding TTD benefits to

him for the entire period of his temporary disability. He also argues that the Board erred

by finding that his argument with respect to notice about the consequences of his refusal

of light-duty work amounted to new evidence not presented to the Single Hearing

Member, and was thus, inadmissible before the Board.

         We begin our analysis by restating our standard of review as indicated by the

Indiana General Assembly in the Administrative Orders and Procedures Act, which in

pertinent part provides as follows:

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      . . . .The order must include, separately stated, findings of fact for all
      aspects of the order, including the remedy prescribed and, if applicable, the
      action taken on a petition for stay of effectiveness. Findings of ultimate
      fact must be accompanied by a concise statement of the underlying basic
      facts of record to support the findings. The order must also include a
      statement of the available procedures and time limit for seeking
      administrative review of the order (if administrative review is available).

      ....

      Findings must be based exclusively upon the evidence of record in the
      proceeding and on matters officially noticed in that proceeding. Findings
      must be based upon the kind of evidence that is substantial and reliable.
      The administrative law judge’s experience, technical competence, and
      specialized knowledge may be used in evaluating evidence.

Ind. Code § 4-21.5-3-27(b), (d).

      Furthermore, we have stated the following about appellate review of an

administrative order:

      Our review of an administrative decision is limited to whether the agency
      based its decision on substantial evidence, whether the agency’s decision
      was arbitrary and capricious, and whether it was contrary to any
      constitutional, statutory, or legal principle. We are not allowed to conduct
      a trial de novo, but rather, we defer to an agency’s fact-finding, so long as
      its findings are supported by substantial evidence. . . .

PSI Energy, Inc. v. Ind. Office of Util. Consumer Counsel, 764 N.E.2d 769, 774 (Ind. Ct.

App. 2002), trans. denied. We have additionally stated as follows:

      The Board, as the trier of fact, has a duty to issue findings that reveal its
      analysis of the evidence and that are specific enough to permit intelligent
      review of its decision. In evaluating the Board’s decision, we employ a
      two-tiered standard of review. First, we review the record to determine if
      there is any competent evidence of probative value to support the Board’s
      findings. We then assess whether the findings are sufficient to support the
      decision. We will not reweigh the evidence or assess witness credibility. . .
      .[T]he claimant[] had the burden to prove a right to compensation under the
      Worker’s Compensation Act[]. As such, [the claimant] appeals from a
      negative judgment. When reviewing a negative judgment, we will not

                                           4
       disturb the Board’s findings of fact unless we conclude that the evidence is
       undisputed and leads inescapably to a contrary result, considering only the
       evidence that tends to support the Board’s determination together with any
       uncontradicted adverse evidence. The Board is not obligated to make
       findings demonstrating that a claimant is not entitled to benefits; rather, the
       Board need only determine that the claimant has failed to prove entitlement
       to benefits. “While this court is not bound by the Board’s interpretations of
       law, we should reverse only if the Board incorrectly interpreted the
       Worker’s Compensation Act.” Luz v. Hart Schaffner & Marx, 771 N.E.2d
       1230, 1232 (Ind. Ct. App.2002). “We will construe the Worker’s
       Compensation Act liberally in favor of the employee.” Id.

Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008) (most internal

citations omitted).

       Furthermore,

       The first stage of our review examines whether the agency’s “decision
       contain[s] specific findings on all of the factual determinations material to
       its ultimate conclusions,” which is especially important when the agency’s
       decision is a rate order. Basic findings of fact are important because they
       enlighten us as to the agency’s “reasoning process and subtle policy
       judgments” and allow for “a rational and informed basis for review,” which
       lessens the likelihood that we would substitute our “judgment on complex
       evidentiary issues and policy determinations” better decided by an agency
       with technical expertise. Requiring an agency to set forth basic findings
       also assists the agency “in avoiding arbitrary or ill-considered action.” The
       second stage of the review process examines whether there is substantial
       evidence in the record to support the agency’s basic findings of fact. To
       determine whether there was substantial evidence sufficient to support the
       agency’s determination, we must consider all evidence, including that
       evidence supporting the determination as well as evidence in opposition to
       it. We may set aside agency findings of fact only when we determine, after
       a review of the entire record, that the agency’s decision clearly “lacks a
       reasonably sound basis of evidentiary support.”

Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 804 N.E.2d 289, 294 (Ind. Ct.

App. 2004) (internal citations omitted).




                                             5
      Here, there are no findings of the facts that underlie the Board’s decision. Rather,

the Board merely makes two unsupported legal conclusions; namely that Gordon was

entitled to an award of statutory medical-expenses compensation and to thirty weeks of

TTD benefits. From these sparse findings, we are unable to determine the Board’s

reasoning process. From the record presented to us, we are unable to determine whether

the Board’s determination is in accordance with the law or whether the determination is

arbitrary or capricious. Thus, we are compelled to conclude that this matter must be

vacated and remanded to the Board with instructions to issue findings of fact and

conclusions thereon which comport with the Indiana Administrative Orders and

Procedures Act such that we can conduct, if necessary, our appellate review of the

Board’s determination.

      Vacated and remanded.

VAIDIK, J., and PYLE, J., concur.




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