 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.                                Jun 04 2013, 8:14 am




ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

EDWARD C. LAWHEAD                                   ELIZABETH M. BEZAK
Schreiner, Malloy & Etzler, P.C.                    Burke Costanza & Carberry LLP
Highland, Indiana                                   Merrillville, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JASON ULYSSES HARMON,                               )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )     No. 93A02-1212-EX-1030
                                                    )
UNITED STATES STEEL CORPORATION                     )
f/k/a USX CORPORATION,                              )
                                                    )
       Appellee-Defendant.                          )
                                                    )


          APPEAL FROM THE INDIANA WORKER’S COMPENSTION BOARD
                           Application No. C-206972
                    The Honorable Linda Hamilton, Chairperson


                                           June 4, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Jason Ulysses Harmon appeals the Worker’s Compensation Board’s (“the Board”)

decision that he was not entitled to any benefits under the Indiana Worker’s

Compensation Act. Harmon contends that the Board erred in finding he did not give his

employer, United States Steel (“USX”), proper statutory notice of his injury and his

carpal tunnel syndrome was not caused by his job at USX. Finding that the Board did not

err and that Harmon is not entitled to any benefits, we affirm.

                              Facts and Procedural History

       On or around February 6, 1995, Harmon began working for National Steel, which

was bought by USX in May 2003. In August 2002, Harmon sought treatment for tingling

and numbness in his hands that began after a three-hour motorcycle trip a year and a half

before. Appellee’s App. p. 20. The next month, Harmon reported having throbbing in

his wrist after doing yard work. Id. at 19. In March 2004 and February 2005, Harmon

again complained of having pain in both wrists and was diagnosed by a doctor at

Integrated Pain Management as having carpal tunnel syndrome. Id. at 21. Harmon was

prescribed splints to wear on his wrists at night, stretches, and physical therapy.

       In January 2005, Harmon was also diagnosed with carpal tunnel syndrome by Dr.

Andrew Szefler, M.D., at the United States Steel Family Medical Clinic. Id. at 31. Dr.

Szefler scheduled a diagnostic test, an EMG, to confirm the diagnosis and referred

Harmon to a hand surgeon. Harmon never had the EMG and never went to the hand

surgeon. Harmon sought treatment with Dr. Szefler again in July 2005, April 2008, and

May 2009 for numbness and tingling in his hands and fingers. Id. at 27-29.

                                              2
        Harmon began working as a feeder at USX in June 2010, which required him to

swing a sledgehammer of varying weights five to eight times every ten to fifteen minutes

to check the dexterity of the welds of the steel coils. Harmon would work eight-hour

shifts, during which time he would strike between twenty and twenty-eight coils.

        On August 15, 2010, Harmon failed to come to work as scheduled and failed to

follow protocol for calling off of work. Harmon presented to the emergency room at

Methodist Hospital in Merrillville that morning, complaining again about symptoms in

his left hand. Harmon informed the doctor about his use of a sledgehammer at work, and

he was diagnosed with traumatic peripheral neuropathy and referred to Dr. Richard Oni,

M.D.

        The next day, USX issued three discipline citations to Harmon for: (1) failure to

report to work; (2) failure to work as scheduled; and (3) violation of a Last Chance

Agreement.1 On August 20, 2010, Harmon was discharged from USX. Harmon filed a

grievance relating to his discharge, reporting for the first time his claim of work-related

bilateral carpal tunnel syndrome. Harmon’s employment would be reinstated a year later

as a result of an arbitration award.

        Three days after his discharge, Harmon began treatment with Dr. Oni. Harmon

again was diagnosed with carpal tunnel syndrome, along with cervical radiculopathy, and

was sent for an EMG of both arms. The EMG showed carpal tunnel syndrome but no

cervical radiculopathy. Dr. Oni opined that Harmon’s job “swinging a sledgehammer at
        1
          The Last Chance Agreement was entered into on February 16, 2010, as a settlement of two other
discharges that resulted from workmanship issues. Although Harmon had never before been disciplined
for attendance issues, the Last Chance Agreement required that Harmon must call in at least two hours
before his scheduled shift if he was going to be absent or late. Any material violation of the Last Chance
Agreement would result in a suspension subject to discharge. Ex. 6.
                                                    3
work constantly and the repetitive trauma to the median nerve in a confined space to both

wrists caused the condition,” id. at 25, and suggested that Harmon undergo surgery to

treat his condition. Harmon attempted to have surgery, but Dr. Oni could not proceed

until the surgery was cleared by worker’s compensation. USX’s Medical Director, Dr.

Tokowitz, and a safety engineer performed an evaluation of the feeder job and talked to

Harmon about his job. They found that the feeder job did not pose any increased risk for

upper extremity disorders. Id. at 40. The job was not considered repetitive and was

determined not to be the cause of Harmon’s carpal tunnel, so worker’s compensation did

not cover Harmon’s surgery. USX also found that Harmon failed to report his injury to

his supervisors when it occurred, as required under Indiana Code sections 22-3-3-1 and

22-3-3-2 and USX policy.

       After USX denied Harmon’s work-related injury claim, Harmon sought treatment

with Dr. Gregory McComis, M.D., who also diagnosed him with carpal tunnel syndrome.

After Harmon discussed the surgery with his personal insurance company, Dr. McComis

performed a left carpal tunnel release on December 7, 2011, and a right carpal tunnel

release on January 3, 2012. On February 14, 2012, Harmon was released back to work

with no restrictions.

       Harmon filed an application for worker’s compensation benefits against USX on

October 14, 2010, and an amended application on January 17, 2011. A single-member

hearing was held, and an order was issued that Harmon was not entitled to any benefits

under the Indiana Worker’s Compensation Act. Appellant’s App. p. 3-9. Harmon filed




                                           4
an appeal before the full Board. A hearing was held, and the order from the single-

member hearing was adopted and affirmed. Id. at 11-12.

       Harmon now appeals.

                                 Discussion and Decision

       In reviewing a worker’s compensation decision, an appellate court is 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.      Christopher R. Brown,

D.D.S., Inc. v. Decatur Cnty. Mem’l Hosp., 892 N.E.2d 642, 646 (Ind. 2008). As to the

Board’s interpretation of the law, an appellate court employs a deferential standard of

review to the interpretation of a statute by an administrative agency charged with its

enforcement in light of its expertise in the given area. Id.

       In this case, Harmon is appealing from a negative judgment. In an appeal from a

negative judgment by the Board, we will neither reweigh the evidence nor judge the

credibility of witnesses. Hill v. Worldmark Corp./Mid Am. Extrusions Corp., 651 N.E.2d

785, 786 (Ind. 1995). Rather, we examine the record only to determine whether there are

any substantial evidence and reasonable inferences that can be drawn therefrom to

support the Board’s findings and conclusion. Id. Only if the evidence is of a character

that reasonable persons would be compelled to reach a conclusion contrary to the

decision of the Board will it be overturned. Id. In other words, unless the evidence is

undisputed and leads inescapably to a result contrary to the Board’s finding, it will be

affirmed. Id. at 787.




                                              5
      Harmon first contends that the Board erred in finding that he failed to provide

proper notice of his injury under both company protocol and Indiana Code sections 22-3-

3-1 and -2. Indiana Code section 22-3-3-1 requires that unless the employer has actual

knowledge of the injury, the injured employee must give written notice to the employer

within thirty days from the date of injury; otherwise, no compensation is paid until the

employer receives notice. However, that section goes on to state that “[n]o lack of

knowledge by the employer or the representative . . . shall bar compensation, unless the

employer shall show that he is prejudiced by such lack of knowledge . . . and then only to

the extent of such prejudices.” Ind. Code § 22-3-3-1. Indiana Code section 22-3-3-2 sets

forth the specific form and contents of the written notice. In his deposition, Harmon

admitted that he did not notify anyone at USX of his injury before his grievance

procedure. Appellee’s App. p. 33. So, while we do find that the Board did not err in

finding that Harmon failed to give the statutorily required notice in the proper form

within the proper time frame, USX was not prejudiced by this failure because Harmon

was denied compensation.

      Harmon also contends that the Board erred in rejecting the medical opinion that

his carpal tunnel syndrome was caused by his feeder job at USX. Whether an employee’s

injury was caused by his employment is a question of fact to be determined by the Board.

Conway ex rel. Conway v. Sch. City of E. Chi., 734 N.E.2d 594, 597 (Ind. Ct. App. 2000),

trans. denied. In this case, the Board found that Harmon’s claim of being diagnosed with

carpal tunnel syndrome in August 2010 was “not credible in light of the numerous,

objective documentation[s] which unequivocally indicate that not only had the Plaintiff

                                            6
been diagnosed with carpal tunnel many years prior to 2010, but that he had this

diagnosis many years before becoming employed with U.S. Steel . . . .” Appellant’s App.

p. 7. The Board also found that Harmon failed to show that his carpal tunnel syndrome

was caused by his employment as a feeder at USX. Id. at 9. We agree.

      Medical records show that Harmon began treatment for his symptoms in August

2002, and he was diagnosed with carpal tunnel syndrome for the first time in March

2004, over six years before he contends he received the diagnosis. Appellee’s App. p.

20-21. He was again diagnosed with carpal tunnel syndrome in January and February

2005, id. at 21, 31, and saw Dr. Szefler for treatment of his symptoms in July 2005, April

2008, and May 2009 for numbness and tingling in his hands and fingers. Id. at 27-29.

      In January 2005, an EMG was scheduled for Harmon, and he was referred to a

hand surgeon, but Harmon did not follow-through on either of those recommended

treatment plans. Id. at 30-31. However, the fact that he was referred to a surgeon almost

seven years before he actually had the surgery on his wrists indicates that the carpal

tunnel syndrome was likely advanced to the point of needing surgery before he began

working as a feeder for USX.

      Based on these facts, we find that the evidence and the reasonable inferences

drawn therefrom support the Board’s findings rejecting Harmon’s claim that he was

diagnosed with carpal tunnel syndrome in August 2010 and that his feeder job at USX

was the cause of this diagnosis. We therefore uphold the Board’s decision that Harmon is

not entitled to any benefits under the Indiana Worker’s Compensation Act.




                                            7
      Affirmed.

KIRSCH, J., and PYLE, J., concur.




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