FOR PUBLICATION
                                                                      Sep 19 2014, 10:32 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

LIBERTY L. ROBERTS                            EDWARD J. MERCHANT
Church Church Hittle & Antrim                 JOHN A HENRY
Indianapolis, Indiana                         Ruckelshaus Kautzman Blackwell Bemis
                                                 & Hasbrook
                                              Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE,
Indiana Association of Cities and Towns and
Indiana Municipal Lawyers Association:

DAVID E. BAILEY
PATRICK L. PROCTOR
Eilbacher Fletcher, LLP
Fort Wayne, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CITY OF MITCHELL,                             )
                                              )
       Appellant-Petitioner,                  )
                                              )
              vs.                             )    No. 47A01-1402-PL-88
                                              )
RANDY PHELIX,                                 )
                                              )
       Appellee-Respondent.                   )


                    APPEAL FROM THE LAWRENCE CIRCUIT COURT
                       The Honorable E. Michael Hoff, Special Judge
                             Cause No. 47C01-1210-PL-1651
                                         September 19, 2014

                                 OPINION - FOR PUBLICATION


BARNES, Judge

                                          Case Summary

          The City of Mitchell (“the City”) appeals the trial court’s denial of its complaint

for declaratory judgment related to Randy Phelix’s claim for medical expenses. The

Indiana Association of Cities and Towns and the Indiana Municipal Lawyers Association

filed an amici curiae brief in support of the City. We reverse.

                                                Issues

          The City raises two issues, which we revise and restate as whether the trial court

properly found that the City was required to pay Phelix’s medical expenses under Indiana

Code Section 36-8-4-5.

                                                Facts

          Phelix was employed as a police officer for the City from November 1997 through

March 2008. During his employment, Phelix dismantled methamphetamine labs as part

of his duties. At some point, Phelix was diagnosed with diabetes, peripheral neuropathy,

systolic hypertension, and renal disease. In March 2008, Phelix advised the City that he

was unable to perform his duties as a result of his health conditions, and he requested

disability benefits from the Public Employees’ Retirement Fund (“PERF”)1 pursuant to


1
    PERF is now known as the Indiana Public Retirement System (“INPRS”).
                                                  2
Indiana Code Section 36-8-8-12. The City’s pension board conducted a hearing on

Phelix’s request and found that “Phelix was suffering from an occupational disease as

that term was defined in I.C. § 36-8-8-12.5(b)(1)(C)” and that “Phelix had a Class 1

impairment as defined by I.C. § 36-8-8-12.5(b)(1)(C).”2 App. p. 37. The pension board’s

findings were sent to PERF for review. On June 2, 2008, PERF disagreed with the City’s

pension board. PERF found that Phelix had a Class 3 impairment with a 20% degree of

disability.3 Phelix appealed PERF’s determination that his disability, neuropathy, was a

Class 3 disability and that he had a 20% degree of impairment. Phelix maintained that

“his disability was a Class 1 impairment because it was the result of his unprotected

2
    A Class 1 impairment is:

                  a covered impairment that is the direct result of one (1) or more of the
                  following:

                  (A)     A personal injury that occurs while the fund member is on duty.

                  (B)     A personal injury that occurs while the fund member is off duty
                          and is responding to:

                          (i)     an offense or a reported offense, in the case of a police
                                  officer; or

                          (ii)    an emergency or reported emergency for which the fund
                                  member is trained, in the case of a firefighter.

                  (C)     An occupational disease (as defined in IC 22-3-7-10). A covered
                          impairment that is included within this clause and subdivision
                          (2) shall be considered a Class 1 impairment.

                  (D)     A health condition caused by an exposure risk disease that
                          results in a presumption of disability or death incurred in the line
                          of duty under IC 5-10-13.

Ind. Code § 36-8-8-12.5(b)(1).


3
  “A Class 3 impairment is a covered impairment that is not a Class 1 impairment or a Class 2
impairment.” I.C. § 36-8-8-12.5(b)(3).
                                                      3
exposure to chemicals while dismantling methamphetamine labs as part of his law

enforcement duties.” Id. PERF’s medical director, Dr. Omkar Markland, determined

that Phelix’s neuropathy was “caused at least in part by his diabetes, thus making it a

Class 3 impairment, not a Class 1 impairment.” Id. PERF referred Phelix to Dr. Brent

Furbee, who concluded that “Phelix certainly described sensorimotor abnormalities of his

distal extremities that could be consistent with peripheral polyneuropathy.” Id. at 38. On

December 1, 2008, PERF issued an amended determination, finding that Phelix had a

Class 2 impairment with a 20% disability.4 Phelix did not appeal that determination.



4
    A Class 2 impairment is:

                  a covered impairment that is:

                  (A)     a duty related disease. A duty related disease means a disease
                          arising out of the fund member’s employment. A disease shall be
                          considered to arise out of the fund member’s employment if it is
                          apparent to the rational mind, upon consideration of all of the
                          circumstances, that:

                          (i)     there is a connection between the conditions under
                                  which the fund member’s duties are performed and the
                                  disease;

                          (ii)    the disease can be seen to have followed as a natural
                                  incident of the fund member’s duties as a result of the
                                  exposure occasioned by the nature of the fund member’s
                                  duties; and

                          (iii)   the disease can be traced to the fund member’s
                                  employment as the proximate cause; or

                  (B)     a health condition caused by:

                          (i)     an exposure related heart or lung disease;

                          (ii)    an exposure related cancer; or

                          (iii)   exposure related Parkinson’s disease;


                                                      4
        In January 2009, Phelix asked the City to pay his medical expenses pursuant to

Indiana Code Section 36-8-4-5. The City directed Phelix to file a claim with the City’s

worker’s compensation carrier. In the claim, Phelix alleged that “he had suffered a work

related injury from exposure to chemicals used in manufacturing methamphetamine” and

that “the exposure caused him to have diabetes and tingling in his hands and feet.” Id. at

39.    The worker’s compensation carrier obtained medical records and had Phelix

evaluated by a neurologist.           The neurologist issued a report stating that “it was

‘impossible to determine’ whether the neuropathy Phelix complained of was caused by

diabetes or toxic exposure.” Id. at 40. On January 21, 2010, the carrier denied Phelix’s

claim for worker’s compensation benefits on the grounds that the “[c]laim did not occur

in [the] course and scope of [Phelix’s] employment.” Id. Phelix did not challenge the

denial of his worker’s compensation claim by making an application to the worker’s

compensation board. See Ind. Code § 22-3-4-5.

        Phelix continued to request payment of his medical expenses pursuant to Indiana

Code Section 36-8-4-5. On October 24, 2012, the City filed a complaint for declaratory

judgment regarding Phelix’s claim for payment of his medical expenses.                        The City

requested that the trial court declare it had no “duty or obligation under I.C. § 36-8-4-5 to

pay Phelix’s medical expenses.” App. p. 15. The parties filed a stipulation of facts and




                        that results in a presumption of disability incurred in the line of
                        duty under IC 5-10-15.

I.C. § 36-8-8-12.5(b)(2).


                                                    5
evidence and submitted memorandums in support of their positions.5 After a hearing, the

trial court denied the City’s complaint for declaratory judgment. The trial court found:

             17.       The court concludes that Ind. Code § 22-3-2-2 limits
                       an injured or ill police officer to receiving the type of
                       medical services that are typically provided under
                       worker’s compensation policies. Also, that statute
                       makes it clear that a police officer may not recover
                       twice for the same bill. The statute also makes it clear
                       that the liability of a governmental unit to pay for the
                       cost of care for injury or illness a police officer has
                       contracted in the performance of the officer’s duty
                       does not end with the purchase of a worker’s
                       compensation policy. If insurance coverage ends for
                       any reason the governmental unit is obliged to provide
                       medical benefits that are necessary until the police
                       officer or firefighter is no longer in need of medical
                       care.

             18.       The issue of whether or not Randal Phelix has a
                       disease arising out of his employment as a City of
                       Mitchell police officer that is a covered Class 2
                       impairment, with a 20% disability, was decided by
                       PERF, the agency authorized by Indiana law to make
                       that decision. Defendant’s application for worker’s
                       compensation coverage, as instructed by the City’s
                       Attorney, did not change that determination or waive
                       Defendant’s right to payment of charges for his
                       medical care as set out in Ind. Code § 36-8-4-5(a).

             19.       Since the City has a worker’s compensation policy,
                       Defendant is limited to receiving the type of medical
                       services that are provided by that policy. However, the
                       administrators of that worker’s compensation policy
                       do not have the authority to decide whether or not
                       Randal Phelix has a disease arising out of his
                       employment as a City of Mitchell police officer that is
                       a covered Class 2 impairment, or that he has a 20%
                       disability, as PERF already decided those issues.

5
  Phelix also submitted various documents with his memorandum. However, the City filed objections to
the admission of those documents, and the trial court sustained the City’s objections.
                                                 6
            20.      The court finds that the City has a clear obligation
                     under Ind. Code § 36-8-4-5 to pay Mr. Phelix’s
                     medical expenses.          Purchasing a worker’s
                     compensation policy did not end that obligation,
                     although so long as the policy is paying Mr. Phelix’s
                     medical expenses the City is not required to pay
                     anything from the City’s general revenue. If the City’s
                     worker’s compensation policy stops paying Mr.
                     Phelix’s medical expenses related to his duty related
                     disease, the City of Mitchell is obligated by Ind. Code
                     § 36-8-4-5 to pay those medical expenses.

                     IT IS THEREFORE ORDERED that the City of
                     Mitchell’s request for the entry of a judgment
                     declaring that it has no duty or obligation under Ind.
                     Code § 36-8-4-5 to pay Randal Phelix’s medical
                     expenses is denied. Judgment is entered in favor of
                     Defendant Randal Phelix on Plaintiff’s Complaint.

App. pp. 100-01. The City now appeals.

                                          Analysis

       The trial court entered findings of fact and conclusions thereon pursuant to Indiana

Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly

erroneous. Menard, Inc. v. Dage–MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). In

general, we first consider whether the evidence supports the factual findings and then

consider whether the findings support the judgment. Id. Here, the parties stipulated to

the relevant facts. “Where, as here, the decision is based entirely upon documentation or

a stipulation by the parties, we are in as good a position as the trial court ‘to determine its

force and effect.’” Gillespie v. GEICO Gen. Ins. Co., 850 N.E.2d 913, 916 (Ind. Ct. App.

2006) (quoting Soc’y for Prevention of Cruelty to Animals and Humane Soc’y of



                                              7
Delaware County, Inc. v. City of Muncie ex rel. Scroggins, 769 N.E.2d 669, 673 (Ind. Ct.

App. 2002)). Accordingly, we apply a de novo standard of review. Id.

       The City argues that the trial court’s finding that it must pay Phelix’s medical

expenses under Indiana Code Section 36-8-4-5 is clearly erroneous. This issue requires

us to interpret several interrelated statutes. In interpreting statutes, we seek to give effect

to the intent of the legislature. F.D. v. Indiana Dep’t of Child Servs., 1 N.E.3d 131, 136

(Ind. 2013). We look first to the statutory language, and we presume that the words of an

enactment were selected and employed to express their common and ordinary meanings.

Id. “Where the statute is unambiguous, the Court will read each word and phrase in this

plain, ordinary, and usual sense, without having to resort to rules of construction to

decipher meanings.” Id. Clear and unambiguous statutes leave no room for judicial

construction, but when a statute is susceptible to more than one interpretation, it is

deemed ambiguous and is thus open to judicial construction. Ballard v. Lewis, 8 N.E.3d

190, 194 (Ind. 2014). “Where there is ambiguity, courts resort to the rules of statutory

construction so as to give effect to the General Assembly’s intent.” Id.

       The trial court found that the City was required to pay Phelix’s medical expenses

pursuant to Indiana Code Section 36-8-4-5, which concerns a city’s duty to care for

police officers that have suffered a line of duty injury, and Indiana Code Section 22-3-2-

2, which is part of the Worker’s Compensation Act (“WCA”). Indiana Code Section 36-

8-4-5 provides:

              (a)    A city shall pay for the care of a police officer or
                     firefighter who suffers an injury while performing the
                     person’s duty or contracts illness caused by the

                                              8
                    performance of the person’s duty, including an injury
                    or illness that results in a disability or death presumed
                    incurred in the line of duty under IC 5-10-13. This
                    care includes:

                    (1)    medical and surgical care;
                    (2)    medicines and laboratory, curative, and
                           palliative agents and means;
                    (3)    X-ray, diagnostic, and therapeutic service,
                           including during the recovery period; and
                    (4)    hospital and special nursing care if the
                           physician or surgeon in charge considers it
                           necessary for proper recovery.

             (b)    Expenditures required by subsection (a) shall be paid
                    from the general fund of the city.

             (c)    A city that has paid for the care of a police officer or
                    firefighter under subsection (a) has a cause of action
                    for reimbursement of the amount paid under
                    subsection (a) against any third party against whom the
                    police officer or firefighter has a cause of action for an
                    injury sustained because of or an illness caused by the
                    third party. The city’s cause of action under this
                    subsection is in addition to, and not in lieu of, the
                    cause of action of the police officer or firefighter
                    against the third party.

Indiana Code Section 22-3-2-2 provides, in part:

             (c)    IC 22-3-2 through IC 22-3-6 does not apply to
                    employees of municipal corporations in Indiana who
                    are members of:

                    (1)    the fire department or police department of any
                           such municipality; and

                    (2)    a firefighters’ pension fund or of a police
                           officers’ pension fund.

                    However, if the common council elects to purchase
                    and procure worker’s compensation insurance to
                    insure said employees with respect to medical benefits

                                            9
      under IC 22-3-2 through IC 22-3-6, the medical
      provisions of IC 22-3-2 through IC 22-3-6 apply to
      members of the fire department or police department
      of any such municipal corporation who are also
      members of a firefighters’ pension fund or a police
      officers’ pension fund.

                          *****

(e)   When any municipal corporation purchases or
      procures worker’s compensation insurance covering
      members of the fire department or police department
      who are also members of a firefighters’ pension fund
      or a police officers’ pension fund, and pays the
      premium or premiums for such insurance, the payment
      of such premiums is a legal and allowable expenditure
      of funds of any municipal corporation.

(f)   Except as provided in subsection (g), where the
      common council has procured worker’s compensation
      insurance under this section, any member of such fire
      department or police department employed in the city
      carrying such worker’s compensation insurance under
      this section is limited to recovery of medical and
      surgical care, medicines, laboratory, curative and
      palliative agents and means, x-ray, diagnostic and
      therapeutic services to the extent that such services are
      provided for in the worker’s compensation policy
      procured by such city, and shall not also recover in
      addition to that policy for such same benefits provided
      in IC 36-8-4.

(g)   If the medical benefits provided under a worker’s
      compensation policy procured by the common council
      terminate for any reason before the police officer or
      firefighter is fully recovered, the common council shall
      provide medical benefits that are necessary until the
      police officer or firefighter is no longer in need of
      medical care.




                             10
The interplay between these two statutes is a matter of first impression.6


6
  There seems to have been some confusion regarding the applicability of Indiana Code Chapter 22-3-2,
which is the WCA, or Indiana Code Chapter 22-3-7, which is the Worker’s Occupational Diseases
Compensation Act. Before the trial court, Phelix argued that the Worker’s Occupational Diseases
Compensation Act applied to his claim, not the WCA. The City responded that the worker’s
compensation policy covered both injuries and diseases and that the carrier denied Phelix’s claim because
his medical condition was not related to his employment, not because it was a disease rather than an
injury. The trial court applied the WCA.
        On appeal, the City notes that the relevant provisions of both statutes are the same or substantially
similar. See Appellant’s Br. p. 2 n.1. Much of the language of the Worker’s Occupational Diseases
Compensation Act tracks that of the WCA. See Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271,
1276 (Ind. 1994). For example, Indiana Code Section 22-3-7-2 provides:

                (a)      Every employer and every employee, except as stated in this
                         chapter, shall comply with this chapter, requiring the employer
                         and employee to pay and accept compensation for disablement
                         or death by occupational disease arising out of and in the course
                         of the employment, and shall be bound thereby. The burden of
                         proof is on the employee. The proof by the employee of an
                         element of a claim does not create a presumption in favor of the
                         employee with regard to another element of the claim.

                                                 *****

                (c)      This chapter does not apply to employees of municipal
                         corporations in Indiana who are members of:

                         (1)     the fire department or police department of any such
                                 municipality; and

                         (2)     a firefighters’ pension fund or a police officers’ pension
                                 fund.

                         However, if the common council elects to purchase and procure
                         worker’s occupational disease insurance to insure said
                         employees with respect to medical benefits under this chapter,
                         the medical provisions apply to members of the fire department
                         or police department of any such municipal corporation who are
                         also members of a firefighters’ pension fund or a police officers’
                         pension fund.

                (d)      When any municipal corporation purchases or procures worker’s
                         occupational disease insurance covering members of the fire
                         department or police department who are also members of a
                         firefighters’ pension fund or a police officers’ pension fund and
                         pays the premium or premiums for the insurance, the payment of
                         the premiums is a legal and allowable expenditure of funds of
                         any municipal corporation.
                                                    11
        The City and amici curiae argue that, under these two statutes, if a city procures a

worker’s compensation policy covering the police department, an injured officer must

look to recovery under the WCA first, not Indiana Code Section 36-8-4-5. In support of

this argument, the City and amici curiae rely on the language of the Indiana Code Section

22-3-2-2(f), which expressly limits an injured officer under these circumstances “to

recovery of medical . . . care . . . to the extent that such services are provided for in the

worker’s compensation policy procured by such city, and shall not also recover in

addition to that policy for such same benefits provided in IC 36-8-4.” They also rely on

Elwell v. City of Michigan City, 179 Ind. App. 434, 385 N.E.2d 1203 (1979).7 In




                (e)     Except as provided in subsection (f), where the common council
                        has procured worker’s occupational disease insurance as
                        provided under this section, any member of the fire department
                        or police department employed in the city carrying the worker’s
                        occupational disease insurance under this section is limited to
                        recovery of medical and surgical care, medicines, laboratory,
                        curative and palliative agents and means, x-ray, diagnostic and
                        therapeutic services to the extent that the services are provided
                        for in the worker’s occupational disease policy so procured by
                        the city, and may not also recover in addition to that policy for
                        the same benefits provided in IC 36-8-4.

                (f)     If the medical benefits provided under a worker’s occupational
                        disease policy procured by the common council terminate for
                        any reason before the police officer or firefighter is fully
                        recovered, the common council shall provide medical benefits
                        that are necessary until the police officer or firefighter is no
                        longer in need of medical care.

Indiana Code Section 22-3-7-2 is substantially similar to Indiana Code Section 22-3-2-2. Further, the
worker’s compensation board has jurisdiction over claims covered by Indiana Code Chapter 22-3-7. I.C.
§ 22-3-7-23. Consequently, although it may have been more appropriate to cite Indiana Code Chapter 22-
3-7 in this appeal, the result is the same and, for simplicity, we will refer to the statutes of the WCA.
7
  Elwell did not concern the relationship between Indiana Code Section 36-8-4-5 and Indiana Code
Section 22-3-2-2. Rather, in Elwell, a police officer injured in the line of duty brought an action against
his employer, a city, for negligence related to maintenance of a sewer drain cover. The city argued that
                                                    12
discussing the predecessor to Indiana Code Section 22-3-2-2(f), we opined that “the clear

import of this proviso is to limit the medical benefits payable to exempt officers to those

provided by the compensation act when the city has elected to purchase such insurance.”

Elwell, 179 Ind. App. at 437-38, 385 N.E.2d at 1204. The language of the statute

indicates that Phelix is limited to the benefits provided under the City’s worker’s

compensation policy for medical expenses related to line of duty injuries. Phelix cannot

first look to recover his medical expenses under Indiana Code Section 36-8-4-5.

        Phelix acknowledges that, under Indiana Code Section 22-3-2-2, a city is

permitted to bring police officers within the purview of the WCA if it elects to purchase

worker’s compensation insurance.8 However, Phelix argues that his case falls under the

exception of Indiana Code Section 22-3-2-2(g).9 That subsection requires the City to pay

an officer’s medical benefits until the officer “is no longer in need of medical care” if the

officer’s medical benefits under the worker’s compensation policy “terminate for any

reason before the police officer . . . is fully recovered.” I.C. § 22-3-2-2(g). Phelix argues

that his benefits under the worker’s compensation policy were “denied and were therefore


the officer’s exclusive remedy was provided by the WCA. Ultimately, we concluded that the officer’s
action was not precluded by the WCA, but the city’s liability for medical payments was limited to those
provided under the WCA. Although the circumstances in Elwell are much different than those here, we
agree with Elwell’s interpretation of the predecessor to Indiana Code Section 22-3-2-2(f).
8
  In his Appellee’s Brief, Phelix relies on Fort Wayne Patrolmen’s Benev. Ass’n, Inc. v. City of Fort
Wayne, 903 N.E.2d 493 (Ind. Ct. App. 2009), trans. denied. However, the parties in that case conceded
that the WCA did not apply to the situation and that the officer was not covered by the WCA. Here, the
City elected to provide worker’s compensation insurance under Indiana Code Section 22-3-2-2.
Consequently, Fort Wayne Patrolmen’s Benev. Ass’n is distinguishable.
9
 Phelix also repeatedly contends that the City failed to timely submit of notice of injury to the worker’s
compensation carrier. However, Phelix’s claim was not denied on this basis, and it is unclear how he was
harmed by this alleged failure.
                                                   13
terminated before he was fully recovered.” Appellee’s Br. p. 12. According to Phelix,

the statutes “obligate the City to provide medical care to Mr. Phelix, regardless of the

availability and denial” by the worker’s compensation carrier. Id. at 12-13.

      We disagree with Phelix’s interpretation. Once the City elected to utilize worker’s

compensation under Indiana Code Section 22-3-2-2, Phelix was obligated to seek

payment of his medical expenses under the WCA process. Phelix started the process but

did not further pursue benefits after the worker’s compensation carrier denied his claim.

Although he had the opportunity to do so, Phelix did not challenge the initial

determination of the worker’s compensation carrier. The WCA sets forth the exclusive

procedures for determining a claimant’s rights to worker’s compensation benefits. See

I.C. § 22-3-2-6. By failing to challenge the determination pursuant to the WCA, Phelix

failed to exhaust his administrative remedies and waived his right to dispute the worker’s

compensation carrier’s determination. The plain and unambiguous language of Indiana

Code Section 22-3-2-2(g) only requires the City to pay Phelix’s medical expenses under

these circumstances if his worker’s compensation benefits are “terminated.” Terminated

means “to bring to an end or halt.” THE AMERICAN HERITAGE COLLEGE DICTIONARY

1399 (3rd ed. 2000). The benefits cannot end if they never started; Phelix’s worker’s

compensation benefits were not “terminated” because they never started. Consequently,

the exception found in Indiana Code Section 22-3-2-2(g) does not apply.

      We recognize the inconsistency here—PERF apparently determined that Phelix’s

medical condition was at least in part a result of his employment, but the worker’s

compensation carrier determined that his medical condition was not related to his

                                            14
employment. However, that inconsistency would have been better addressed by Phelix

exhausting his administrative remedies in the worker’s compensation proceedings.

Where the statutes are unambiguous, as here, we are constrained to apply the statutes as

written. The trial court erred when it concluded that Phelix was entitled to have the City

pay his medical bills under Indiana Code Section 36-8-4-5 despite the worker’s

compensation carrier’s denial of his claim.10

                                             Conclusion

        The trial court erred when it determined that the City was required to pay Phelix’s

medical expenses under Indiana Code Section 36-8-4-5. We reverse.

        Reversed.

FRIEDLANDER, J., and MATHIAS, J., concur.




 The City also argues that the trial court erred when it determined that the worker’s compensation carrier
10

was bound by PERF’s decision. Because we conclude that the trial court erred in interpreting the statutes,
we need not address this argument.
                                                   15
