                                                                                        FILED
                                                                               Apr 19 2016, 10:55 am

                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Nathan B. Maudlin                                       Stephen S. Lavallo
      Klezmer Maudlin, P.C.                                   Kahn, Dees, Donovan & Kahn,
      New Harmony, Indiana                                    LLP
                                                              Evansville, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      William Gordon,                                         April 19, 2016
      Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                              93A02-1511-EX-2066
              v.                                              Appeal from the Indiana Worker’s
                                                              Compensation Board
      Toyota Motor Manufacturing                              Application No. C-193891
      of Indiana,
      Appellee-Defendant.




      Najam, Judge.


                                       Statement of the Case
[1]   William Gordon appeals the decision of the Full Worker’s Compensation

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

      awarding Gordon compensation for temporary total disability (“TTD”) benefits

      for injuries he sustained while working for Toyota Motor Manufacturing of


      Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016                           Page 1 of 13
      Indiana (“Toyota”). Gordon presents two issues for our review, which we

      consolidate and restate as a single issue, namely, whether the Board erred when

      it awarded Gordon TTD benefits for thirty weeks instead of the more than two

      years of benefits Gordon had sought.


[2]   We reverse.


                                 Facts and Procedural History
[3]   This court stated the facts and procedural history in Gordon v. Toyota Motor

      Manufacturing of Indiana, No. 93A02-1211-EX-910, 2013 WL 1442051 at *1

      (Ind. Ct. App. April 9, 2013), as follows:

              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.

      Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 2 of 13
              Miller performed surgery on Gordon’s shoulder. Dr. Miller
              expected 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.


[4]   On appeal, we held as follows:


              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.


      Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 3 of 13
      Id. at *3.


[5]   On remand, the Single Hearing Member issued new findings of fact and

      conclusions thereon. Paragraphs numbered one through twelve of the findings

      were identical to the Single Hearing Member’s first decision, but the new

      decision included additional findings and conclusions as follows:

              13. At hearing Plaintiff requested that the expenses of Drs.
              Franklin Wilson and Peter Millett be ordered paid by Defendant.

              14. Plaintiff’s counsel sent him for a consultative examination
              with Franklin D. Wilson, M.D. Dr. Wilson referred to the
              examination as an “Independent Medical Examination” which
              has a given meaning in the medical community as specifically
              not including medical care and treatment. Dr. Wilson’s report
              was not of sufficient weight and authority as to merit an award
              against Defendant for its expense.

              15. Plaintiff testified to a good recovery following the surgery by
              Dr. Millett. The Single Hearing Member is persuaded that Dr.
              Millett’s treatment was appropriate and necessary to Plaintiff’s
              condition. Dr. Millett’s report established that approximately six
              (6) months after the operation he would expect Plaintiff to return
              to full activity. Plaintiff confirmed that was the case through his
              testimony.

                                       CONCLUSIONS OF LAW

              1. Given the fact that Plaintiff’s treatment and surgery at the
              hands of Dr. Millett were necessary, appropriate, and successful,
              Plaintiff is entitled to an award as statutory medical for such
              treatment and surgery beginning April 13, 2010 and ending June
              7, 2010.



      Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 4 of 13
              2. As noted in the Findings above, Dr. Weaver took Plaintiff off
              work on July 16, 2008. The record specifically notes that it
              would be for four (4) weeks.

              3. Taking the four (4) week period referenced by Dr. Weaver
              together with the six (6) months after Dr. Millett’s successful
              surgery, the Single Hearing Member concludes Plaintiff is
              entitled to an award of thirty (30) weeks of temporary total
              disability.


      Appellant’s App. at 8-9. The Full Board affirmed and adopted the Single

      Hearing Member’s decision. This appeal ensued.


                                     Discussion and Decision
[6]   Gordon contends that the Board erred when it did not award him TTD benefits

      for the entire time of his temporary total disability, namely, from August 5,

      2008, until December 7, 2010, or approximately 121 weeks. In particular,

      Gordon maintains that the undisputed evidence shows that, while Toyota

      offered him a job with restrictions following the accident, Gordon was

      physically unable to do that job because of his temporary total disability. Thus,

      Gordon asserts that his refusal to continue working for Toyota on August 5,

      2008, was justifiable and he is entitled to TTD benefits for 121 weeks, not thirty

      weeks.


[7]   Gordon is correct that, under Indiana Code Section 22-3-3-11 (2008), an

      employer is permitted to reduce its worker’s compensation obligation by

      procuring for the injured employee employment by which he can earn some

      wages without injury to himself. K-Mart Corp. v. Morrison, 609 N.E.2d 17, 31

      Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 5 of 13
(Ind. Ct. App. 1993), trans. denied. Subsection (a) of the statute provides that, if

a partially disabled employee refuses employment suitable to his capacity

procured for him, he shall not be entitled to any compensation at any time

during the continuance of such refusal unless in the opinion of the worker’s

compensation board such refusal was justifiable. Id. Here, Gordon testified in

relevant part as follows:

        Q: Okay. So Gary Weaver[, Toyota’s worker’s compensation
        liaison] called you on July 24th of 2008?

        A: Yes.

        Q: What did he tell you?

        A: He told me that I needed to return to work that evening, at
        which point I informed him that I had been to the emergency
        room and been in severe pain from my injuries, and I was very
        confused on why, you know, because of the last doctor orders I
        had were that I was to be off work. And he said there had been
        some changes and that I needed to get up and make sure I
        brought myself into work.

        Q: Okay. So Dr. Weaver took you off work for four weeks on
        July 16th, 2008?

        A: Yes.

                                               ***

        Q: [Then Gary Weaver] said there had been a change and he
        told you to report to work on July 24th of 2008?

        A: Yes.


Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 6 of 13
        Q: Did you go back to work?

        A: Yes, I did.
        Q: You reported to work that night?

        A: Yes, I did.

        Q: What happened?

        A: I was called into the IHS, the [on-site] hospital [at Toyota], to
        speak to the doctor and they. . . .

        Q: Was this Dr. Titzer?

        A: Dr. Titzer, yes.

        Q: Okay. Go ahead.

        A: Him and Tammy Freeman, which I believe was the
        specialist. I didn’t understand. I’d never met her before. But I
        met with the both of them, and they told me there had been
        changes, that I was supposed to come back to work, that I was no
        longer to be off for this period of time and to return to work, and
        they were going to find something for me to do.

        Q: Were you surprised that they wanted you to come back to
        work light-duty?

        A: Yes.

        Q: Okay. Were you surprised with this happening?

        A: Yes, because the last time I had spoken with the doctor, I was
        in pain. I mean, the doctor had told me that light-duty was not
        sufficient, that I was in . . . .



Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 7 of 13
        Q: That you should be off work?

        A: . . . significant pain and I should be off work, yes.

                                               ***

        Q: Dr. Weaver took you off work and then Dr. Titzer put you
        back on?

        A: Brought me back to work.

        Q: Did you do the light-duty work that they wanted you to do
        after July 24th of 2008?

        A: I attempted it.

        Q: What was the job at this time?

        A: It was what they called gate check. I had to stand and inspect
        different parts in different areas of the plant. It’s a sedentary job
        where you sit and watched, you know, or inspected parts coming
        by but I was still was unable to do the job.

        Q: Why not?

        A: I was in excruciating pain. I was throwing up, nauseated. I
        was having migraine headaches and terrible, terrible pain. It hurt
        when I breathed in the back of my shoulder here (WITNESS
        INDICATING).

                                               ***

        Q: Now, on August 5th, you left your employment with Toyota?

        A: Yes, I did.



Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 8 of 13
        Q: Why did you leave?

        A: Because I could no longer continue. I was in terrible, terrible
        shape having the headaches, you know, just miserable headaches
        and throwing up and medically I couldn’t continue it.

        Q: Were you having problems with your shoulder?
        A: Yes, severe pain in my shoulder, pain when I was breathing.
        I could no way [sic] continue.

        Q: So what did you do? Who did you talk to? Did you talk to
        this fellow [indicating to man in hearing room named Scott
        Ward]?

                                               ***

        A: [Yes.] I told him, you know, I had to instruct people to get
        him to line us out. You know, I told him I could no longer
        continue, that medically I just, I couldn’t keep it up, that I was,
        you know, he knew I’d been nauseated. I’d been running to the
        bathroom to throw up and the pain in my shoulder was terrible,
        and I know if I were to continue like that, I would . . . .

        Q: What did he say to you?

        A: That [he] had no problem with that. He said he would get
        my effects in order and my things in order and make sure my
        employment was done so I could go.

        Q: Okay. So you’ve decided to go ahead and take yourself or
        leave that job?

        A: Yes, I did.

        Q: If you were to just walk off the job where your equipment
        had been but you couldn’t do it, what would happen to you?


Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 9 of 13
         A: Well, I would have it on my record. I would have a, you
         know, a firing that—I’ve never had a firing or anything on my
         record. And I didn’t know whether, because of the
         circumstances of the work comp and everything else, any future
         employment, I did not want a firing on my record.
         Q: At this point, you had worked for Toyota for six years?

         A: Yes, sir.

                                                   ***

         Q: So you decided to leave on this date voluntarily?

         A: Yes.

         Q: So you wouldn’t be fired?

         A: Yes, so I wouldn’t be fired.


Appellant’s App. at 31-38. Given this undisputed evidence that Gordon

terminated his employment at Toyota because his work-related injuries

prevented him from doing even the sedentary work he was offered on July 24,

2008, we hold that Indiana Code Section 22-3-3-11 applies here. However, the

Board did not make any findings relevant to that evidence, and the Board made

no determination under Indiana Code Section 22-3-3-11(a) whether Gordon’s

“refusal” to do the work was justifiable.1 In this respect, the Board’s findings

are inadequate.




1
  We reject Toyota’s attempt to analogize the circumstances of Gordon’s leaving work to those of the
claimant in Borgman v. Sugar Creek Animal Hospital, 782 N.E.2d 993 (Ind. Ct. App. 2002), trans. denied. In

Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066        April 19, 2016                 Page 10 of 13
[8]   But this deficiency in the findings does not require another remand. Whether

      or not the Board had found Gordon’s refusal to do the light duty work was

      justifiable, Gordon is still entitled to TTD benefits beginning August 5, 2008, as

      a matter of law. That is because Indiana Code Section 22-3-3-11(b) provides

      that, before compensation can be denied under the statute, the employee must be

      served with a notice setting forth the consequences of the refusal of employment

      under that section. The notice must be in a form prescribed by the worker’s

      compensation board. Id. Gordon maintains that Toyota did not provide him

      with any such notice and, thus, that Toyota could not deny him benefits based

      on his refusal to do the light duty work it had offered him.2 On appeal, Toyota

      does not contend, and there is no evidence in the record, that Toyota complied

      with the notice requirement under the statute.




      Borgman, the injured claimant “voluntarily terminated her employment with Sugar Creek due to reasons
      unrelated to her work injury[.]” Id. at 997. In particular, the evidence showed that Borgman “voluntarily
      terminated her employment at Sugar Creek because of personal difficulties that she had experienced with a
      co-worker.” Id. at 994. Here, however, the undisputed evidence in this case shows that Gordon quit because
      of his work-related injuries. To the extent Toyota contends that Gordon was required to “request to be
      moved, accommodated, or for further treatment” in order to continue getting TTD benefits, Toyota does not
      support that contention with citation to relevant authority. Appellee’s Br. at 12. And we reject Toyota’s
      assertion that Indiana Code Section 22-3-3-11 “has no applicability to this situation whatsoever.” Id. at 17.
      Toyota takes some of Gordon’s testimony out of context to support its contention that Gordon “voluntarily
      terminated his employment[.]” Id. Gordon’s testimony, in its entirety, was that he was physically unable to
      continue the light duty work because of his work-related injuries.
      2
        Toyota avers that Gordon has waived this issue for our review because he raised it for the first time to the
      Full Board. In support of its waiver argument, Toyota cite Four Star Fabricators v. Barrett, 638 N.E.2d 792
      (Ind. Ct. App. 1994). But in Four Star, we held that “Four Star’s objection at the hearing for lack of
      foundation [for the admission a medical report] was too general and was ineffective to preserve error for
      appellate review of the hearing member’s ruling.” Id. at 797. Toyota does not explain how that holding
      relates to the issue here, namely, whether Gordon has waived the issue of Toyota’s compliance with a statute
      by raising it for the first time to the Full Board. Our holding in Four Star is inapposite here.

      Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066        April 19, 2016                 Page 11 of 13
[9]    The Full Board found that Gordon’s argument on this notice issue “was raised

       for the first time at the Full Board arguments and no evidence was introduced at

       the Single Hearing Member hearing.” Appellant’s App. at 15. We disagree.

       Gordon presented evidence at the hearing before the Single Hearing Member to

       show that his refusal to do the light duty work was justifiable. Thus, Indiana

       Code Section 22-3-3-11 applies here, as a matter of law. See, e.g., Vander Woude

       v. First Midwest Bank, 45 N.E.3d 847, 856 (Ind. Ct. App. 2015) (holding that,

       because statute applied to case as a matter of law, Bank had not waived

       applicability of statute by waiting until appeal to raise issue). Once Gordon

       testified that he had terminated his employment because he was physically

       unable to do the light duty work, the burden shifted to Toyota to show that it

       had complied with the notice provision of the statute, but Toyota did not

       present any such evidence. The Full Board erred to the extent that it found

       Gordon had waived the notice issue. Gordon was not required to point out to

       the Single Hearing Member that Toyota had not met its burden. Because notice

       was required as a matter of law, it was appropriate for Gordon to raise the

       notice issue for the first time to the Full Board.


[10]   Further, Gordon’s argument to the Full Board on the notice issue preserved that

       issue for our review. This court has said that, in a worker’s compensation case,

       we will not review a claim that was not raised before either the Single Hearing

       Member or the Board. See Indiana Michigan Power Co. v. Roush, 706 N.E.2d

       1110, 1115 n.4 (Ind. Ct. App. 1999) (emphases added), trans. denied. Here,

       because Gordon raised the notice issue to the Full Board, he has not waived it.


       Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 12 of 13
       And because there is no evidence that Toyota gave Gordon the notice required

       pursuant to Indiana Code Section 22-3-3-11(b), Gordon is entitled to TTD

       benefits from August 5, 2008, through December 7, 2010. See, e.g., K-Mart, 609

       N.E.2d at 32.


[11]   Reversed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion | 93A02-1511-EX-2066   April 19, 2016   Page 13 of 13
