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
                                                           Nov 10 2014, 9:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

JULIA BLACKWELL GELINAS                          LARRY PLEASANTS
JEFFREY J. MORTIER                               Indianapolis, Indiana
MAGGIE L. SMITH
Frost Brown Todd LLC
Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

FRONTLINE NATIONAL, LLC,                         )
                                                 )
       Appellant-Defendant,                      )
                                                 )
               vs.                               )        No. 93A02-1405-EX-308
                                                 )
KATHY STEINHAUER,                                )
                                                 )
       Appellee-Plaintiff.                       )



      APPEAL FROM THE INDIANA WORKER’S COMPENSATION BOARD
                        Application No. C-201362



                                      November 10, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                 STATEMENT OF THE CASE

        Frontline National, LLC (“Frontline”) appeals the Worker’s Compensation

Board’s (“the Board’s”) denial of Frontline’s Application for Review of the Single

Hearing Member’s Order that Frontline pay worker’s compensation benefits to Kathy

Steinhauer. Frontline raises three issues for our review, which we restate as follows:

        1.      Whether the Board abused its discretion when it denied Frontline’s
                request for the Board to consider evidence that Frontline could have
                but did not produce to the Single Hearing Member.

        2.      Whether the Board’s decision that Frontline was not prejudiced by a
                purported delay in Steinhauer’s notice to Frontline of her injury is
                clearly erroneous.

        3.      Whether the Board’s decision is supported by sufficient evidence.

        We affirm.

                          FACTS AND PROCEDURAL HISTORY1

        On January 24, 2013, a Single Hearing Member held a fact-finding hearing on

Steinhauer’s Application for Adjustment of Claim, which she had filed with the Board in

October of 2009.        Following that hearing, the Single Hearing Member entered the

following findings of fact:

        1.     [Steinhauer] worked for [Frontline] as a contract LPN at Camp
        Atterbury . . . . [Steinhauer’s] job duties involved the processing of
        military personnel before and after deployment. [Steinhauer] had no in[-
        ]person contact with anyone at [Frontline], and [she had] only
        communicated with Frontline by email or fax.

        2.     On August 26, 2009, [Steinhauer] was walking across a gravel lot
        with reams of paper when she stepped into a divot and felt pain in the back
        of her foot. [Steinhauer] went into her building and reported to Staff

        1
         We note that the Statement of Facts in Frontline’s brief on appeal is not “in accordance with the
standard of review appropriate to the judgment or order being appealed.” Ind. Appellate Rule
46(A)(6)(b). Accordingly, we do not consider it.
                                                    2
Sergeant Peter Boyd what had occurred and was told to elevate her foot.
Boyd also recommended that she see a physician. Boyd was [Steinhauer’s]
immediate supervisor at the base and he specifically recalled the incident
and recalled examining her ankle and finding it swollen. Major Mike
Keller, the officer in charge of medical operations[,] testified that Boyd was
an honest person. Boyd completed an incident report, but this incident
report was not produced at [the] hearing[;] Boyd noted that this was not
surprising based on previous record keeping. Boyd noticed [Steinhauer]
limping and hobbling after the incident and told her she was unable to
continue working. Boyd had not previously seen her having trouble
limping. Although [Steinhauer] has a history of changing her recollection
of the incident, the support for this incident is based on the credible
testimony of Staff Sergeant Boyd.

3.     [Steinhauer] suffered from pre-existing plantar fasciitis and bilateral
Achilles tendonitis[,] which was symptomatic for three (3) years.
[Steinhauer] first saw Dr. Stevens on August 7, 2009, complaining of
chronic pain in her Achilles tendons and a retrocalcaneal spur[;] at this time
she was fitted for static ankle-foot orthotics. Dr. Stevens conducted an
ultrasound at this visit and ruled out any tears to either Achilles tendon.

4.     On the date of the incident, [Steinhauer] went to Dr. Stevens’s office
for a previously scheduled appointment for follow-up on her orthotics. The
record from Dr. Stevens on this date does not note a work accident;
however, he testified by deposition that this was because of the form
template of his medical records and that he was aware of her injury on this
date and that she presented with severe pain. Additionally, nursing notes
from August 31, 2009, state that [Steinhauer] injured her left foot at work
on August 26, 2009, and that she did not have that type of pain before the
injury[;] therefore, they were sending her for an MRI and physical therapy.
An MRI taken on September 2, 2009, revealed a tear to the left Achilles
tendon.

5.     On September 9, 2009, [Steinhauer] emailed Jeanne Peddicord at
Frontline and informed [her] that she had an MRI and that surgery was
recommended. She specifically stated[,] “I have been tolerating the pain
about three years and thought it was plantar fasciitis until I had the MRI
done.” [Steinhauer] claims that she did not reference her fall because she
believed it had been previously reported by Staff Sergeant Boyd.

6.     On September 11, 2009, [Steinhauer] sent an email to [Peddicord]
and stated that she was walking through gravel, up an incline, and noticed
the burning sensation.


                                      3
       7.     [Frontline] denied her claim due to pre-existing issues and late
       reporting.

Appellant’s App. at 7-9.

       The Single Hearing Member then concluded that Steinhauer’s injury occurred in

the course of and arose out of her employment with Frontline. The Single Hearing

Member specifically stated that, “[d]espite [Steinhauer’s] credibility issues, the hearing

member was persuaded by the credible testimony of Staff Sergeant Boyd, an independent

witness receiving no benefit for his testimony, and the medical opinions of Drs. Stevens

and Patel,” who had performed Steinhauer’s surgery. Id. at 9-10. The Single Hearing

Member further concluded that Steinhauer had “notified her immediate supervisor on the

date of the accident” and Frontline “within 15 days,” and that “there is no prejudice to

[Frontline]” to support its allegation that Steinhauer had not provided it timely notice.

The Single Hearing Member then ordered Frontline to pay for Steinhauer’s medical

treatment and to pay her disability.

       Following the January 24 hearing, Frontline informed the Single Hearing Member

that it had obtained documents that purported to show that Boyd was not working on the

day of Steinhauer’s injury, and Frontline requested the Single Hearing Member “to

consider [this] supplemental evidence” in her final decision. Id. at 41. The Single

Hearing Member refused to consider the purported records, stating that this

“evidence . . . has been readily available at all times,” and that Steinhauer “would be

severely prejudiced if this evidence were allowed into the record without giving Sgt.

Boyd or any of the other witnesses the ability to respond or cross-examine.” Id. at 12.

Frontline appealed the Single Hearing Member’s decisions to the Board, which likewise
                                            4
refused to consider the supplemental evidence and then adopted and affirmed the Single

Hearing Member’s findings and conclusions. This appeal ensued.

                             DISCUSSION AND DECISION

                                    Standard of Review

       When reviewing the decisions of the Board, we are 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. Eads v. Perry Twp. Fire Dep’t, 817

N.E.2d 263, 265 (Ind. Ct. App. 2004), trans. denied.          Additionally, all unfavorable

evidence must be disregarded in favor of an examination of only that evidence and the

reasonable inferences therefrom that support the Board’s findings. Id. And we neither

reweigh the evidence nor judge the witness’s credibility. Id. We review questions of law

de novo. Prentoski v. Five Star Painting, Inc., 827 N.E.2d 98, 101 (Ind. Ct. App. 2005),

aff’d in part, adopted in part, 837 N.E.2d 972 (Ind. 2005).

          Issue One: Denial of Motion to Consider Supplemental Evidence

       We first consider Frontline’s assertion that the Board abused its discretion when it

refused Frontline’s request that the Board consider supplemental evidence, namely,

documents that purported to show that Boyd was not at work on the day of Steinhauer’s

injury. When the Board is reviewing a single hearing member’s determination, the

decision to deny or allow the introduction of additional evidence is a matter within the

Board’s sound discretion. Hancock v. Ind. Sch. for the Blind, 651 N.E.2d 342, 343 (Ind.

Ct. App. 1995), trans. denied. This court will not disturb the Board’s ruling in this regard

unless there is a clear abuse of discretion. Id.


                                              5
       The Board did not abuse its discretion when it denied Frontline’s attempt to

backfill the record.    Frontline’s only clear argument to the contrary is that “[t]he

additional evidence . . . was directly relevant to the issues raised . . . .” Appellant’s Br. at

23. But Frontline does not explain why, in light of that fact, it failed to produce this

evidence at the fact-finding hearing, when Steinhauer would have had the opportunity to

examine the evidence and Staff Sergeant Boyd. We reject Frontline’s argument that the

Board abused its discretion when it denied Frontline’s request.

                                     Issue Two: Notice

       Frontline next asserts that the Board’s decision that Frontline was not prejudiced

by Steinhauer’s alleged late notice of her injury to Frontline was clearly erroneous.

According to Indiana Code Section 22-3-3-1, an injured employee “as soon as practicable

after the injury . . . shall give written notice to the employer of such injury,” unless “the

employer or his representative shall have actual knowledge of the occurrence of an

injury . . . at the time thereof or shall acquire such knowledge afterward . . . .” Further:

       Unless such notice is given or knowledge acquired within thirty (30) days
       from the date of the injury or death, no compensation shall be paid until and
       from the date such notice is given or knowledge obtained. No lack of
       knowledge by the employer or his representative, and no want, failure,
       defect or inaccuracy of the notice shall bar compensation, unless the
       employer shall show that he is prejudiced by such lack of knowledge or by
       such want, failure, defect or inaccuracy of the notice, and then only to the
       extent of such prejudices.

Ind. Code § 22-3-3-1 (2014) (emphasis added).

       On appeal, Frontline asserts that it was prejudiced by the purported delay in

Steinhauer’s notice because it did not have the opportunity to have one of its own doctors

examine Steinhauer’s injury to determine whether her torn Achilles tendon was a pre-
                                               6
existing condition. We cannot agree. First, Frontline had actual notice of Steinhauer’s

injury the day it occurred because Boyd, Steinhauer’s supervisor, observed her injury that

day. As such, Frontline knew of Steinhauer’s injury seventeen days before her surgery.

But Frontline did not use those seventeen days to pursue its own examination of

Steinhauer’s condition, and neither did Frontline instruct Steinhauer to seek treatment

from a Frontline-approved doctor. Rather, Frontline simply denied her claim outright

based on “her pre-existing conditions and late reporting.” Appellant’s App. at 9.

       Its own lack of diligence aside, Frontline’s current argument that it was denied the

opportunity to discover evidence to show that Steinhauer’s injury was a preexisting

condition is undermined by Frontline’s original denial of her claim on the basis of her

preexisting condition. Either Frontline knew of her condition or it needed more evidence

to assess her condition. Moreover, the Single Hearing Member expressly found that the

expert testimony and Steinhauer’s medical records supported her claim that the injury to

her Achilles tendon was not a preexisting condition. Thus, Frontline cannot demonstrate

that it was prejudiced by the timing of Steinhauer’s notice.

                       Issue Three: Sufficiency of the Evidence

       We lastly consider Frontline’s argument that the Board’s decision is not supported

by sufficient evidence.    Frontline asserts broadly that “[t]he evidence also does not

support a finding that there ever was a workplace injury.” Appellant’s Br. at 19. But

Frontline’s entire argument on this issue simply seeks to credit its assessment of the

evidence over the Board’s, the Single Hearing Member’s, and Steinhauer’s. The Single

Hearing Member and the Board refused to weigh the evidence in the manner Frontline


                                             7
desired, and we are in no position to reconsider the weight of the evidence on appeal.

This argument must fail.2

                                             Conclusion

        In sum, we affirm the Board’s decision in all respects.

        Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




        2
           Embedded in this argument, Frontline asserts that Steinhauer’s surgery “was to repair both the
Achilles tendon tear and to repair the pre-existing bone spur issues. [Steinhauer] never presented any
evidence that the bone spur was related to her workplace injury, yet she seeks worker’s compensation
payments for the full surgery.” Appellant’s Br. at 19 (emphasis original). These statements are not
supported by citations to authority or to the record, which, among other things, might have informed this
court whether Frontline actually challenged the amount of the medical costs claimed by Steinhauer during
the fact-finding hearing. This court will not comb the record or make an argument for a party. This
contention concerning Steinhauer’s bone spur is undeveloped, and we do not consider it a freestanding
argument.
                                                   8
