      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                      Jan 22 2016, 8:01 am
      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
      Gabriel J. Quearry                                       Sonia Das
      Quearry Law, LLC                                         Rocap Law Firm, LLC
      Greenwood, Indiana                                       Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Debbie Schinbeckler,                                     January 22, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               93A02-1503-EX-176
              v.                                               Appeal from the Worker’s
                                                               Compensation Board of Indiana
      Express Scripts, Inc. and                                The Honorable Linda Peterson
      Travelers Insurance Co.,                                 Hamilton, Chairperson
      Appellees-Defendants.                                    Application Cause Nos.
                                                               C-222046, C-222742



      Mathias, Judge.


[1]   Debbie Schinbeckler (“Schinbeckler”) appeals the order of the Full Indiana

      Workers Compensation Board (“the Board”) denying her claim that Travelers

      Insurance Company (“Travelers”) acted with a lack of due diligence in

      adjusting her claim for worker’s compensation. On appeal, Schinbeckler
      Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016       Page 1 of 17
      presents four issues for our review, which we consolidate and restate as whether

      the Board clearly erred in denying her claim.

[2]   We affirm.


                                            Statement of Facts

[3]   The facts most favorable to the decision of the Board reveal that Schinbeckler

      was employed by Express Scripts, Inc. (“Express”). On October 31, 2011, she

      sprained her left ankle when she tripped on a raised floor in the kitchen area at

      Express. The injury caused a significant amount of swelling and bruising.

      Although Schinbeckler reported her injury to her immediate supervisor and

      coworkers, she did not file an accident report at the time, nor did she

      immediately seek medical treatment. When the swelling and bruising subsided

      after approximately six weeks, Schinbeckler still had difficulty with the range of

      motion in her foot.


[4]   Schinbeckler first saw a physician on January 23, 2012, when she was treated

      for her ankle injury by Dr. Corey Kendall (“Dr. Kendall”) at Ortho Indy.

      Schinbeckler told Dr. Kendall that she had “rolled her ankle on Halloween, and

      had a severe ankle sprain.” Appellant’s App. p. 48. She also indicated that she

      had difficulty walking without tripping because she could not lift her foot. Dr.

      Kendal took an x-ray of Schinbeckler’s left ankle and conducted a physical

      exam. This revealed Schinbeckler’s left ankle did not have a fracture and that

      the pain and swelling had subsided. Evidence of an old metatarsal fracture was




      Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 2 of 17
      present, and the report states that Schinbeckler had a “history of ankle surgery.”

      Appellant’s App. p. 50. Dr. Kendall’s report concluded:

              We reviewed her x-ray and exam. We discussed the nature of the
              foot drop, and that we need to determine where the nerve is
              being affected. We are going to send her for an EMG, and fit her
              with an AFO [ankle foot orthosis]. She is going to call us after
              her test is complete so we may refer her to the appropriate
              provider for care. She is aware this may or may not improve. Her
              questions were answered today to her satisfaction.


      Id. at 50.


[5]   As recommended, Schinbeckler had an EMG on January 31, 2012. The results

      of the EMG indicated “electrodiagnostic evidence of a left fibular

      mononeuropathy1 located at the fibular head with acute denervation and axon

      loss. Clinical correlation required.” Appellee’s App. p. 1. The EMG further

      revealed, “evidence of a polyneuropathy2 in the bilateral lower extremities as

      well. Clinical correlation required. This most likely represents an incidental

      finding as patient was asymptomatic on the right lower extremity.” Id. at 2. The

      EMG report recommended repeated testing in nine to twelve months if the

      symptoms persisted or worsened, “solely for prognostic value.” Id.




      1
       Mononeuropathy is “a nerve disease affecting only a single nerve.” Merriam-Webster, http://www.merriam-
      webster.com/medical/mononeuropathies.
      2
       Polyneuropathy is “the simultaneous malfunction of many peripheral nerves throughout the body.” Merck
      Manual, http://www.merckmanuals.com/home/brain,-spinal-cord,-and-nerve-disorders/peripheral-nerve-
      disorders/polyneuropathy.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016      Page 3 of 17
[6]   Schinbeckler then saw her family physician, Dr. Rebecca Small (“Dr. Small”),

      on February 13, 2012. Dr. Small noted in her report that Schinbeckler had

      reduced sensation in her feet and toes. Also indicated in the report is that

      Schinbeckler had “reduced strength with dorsiflexion[3] in her LLE [lower left

      extremity].” Appellee’s App. p. 7. Dr. Small’s notes indicate that Schinbeckler

      had a prior surgical history that included “repair of the leg.” Id. at 5. On

      February 15, 2012, Schinbeckler asked Dr. Small if she should continue to go to

      Ortho Indy for her ankle, as she was not sure if her ankle issues were related to

      Dr. Small having recently diagnosed her with diabetes mellitus. Dr. Small

      recommended that she continue going to Ortho Indy because her ankle issues

      could be something other than complications arising out of her diabetes.

[7]   On February 23, 2012, Schinbeckler was seen by Dr. Bradley Jelen (“Dr.

      Jelen”) at Ortho Indy. Dr. Jelen noted that Schinbeckler sprained her ankle on

      October 31, 2011. Dr. Jelen also diagnosed Schinbeckler with left foot drop

      secondary to mononeuropathy of the left peroneal nerve4 at the fibula.5 His




      3
       Dorsiflection is “flexion in a dorsal direction; especially: flexion of the foot in an upward direction.”
      Merriam-Webster, http://www.merriam-webster.com/medical/dorsiflexion.
      4
        “The peroneal nerve is a branch of the sciatic nerve, which supplies movement and sensation to the lower
      leg, foot and toes.” MedlinePlus, U.S. National Library of Medicine,
      https://www.nlm.nih.gov/medlineplus/ency/article/000791.htm.
      5
          The fibula is:
               the outer or postaxial and usually the smaller of the two bones of the hind or lower limb below
               the knee that is the slenderest bone of the human body in proportion to its length, articulates
               above with the external tuberosity of the tibia and below with the talus, and has its lower end
               forming the external malleolus of the ankle—called also calf bone.
      Merriam-Webster, http://www.merriam-webster.com/medical/fibula.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016              Page 4 of 17
      report also indicates that there may have been compression of the nerve above

      the fibula “that could have been a result of the trauma that she sustained

      previously[.]” Appellant’s App. p. 54. Dr. Jelen discussed the possibility of

      surgical decompression of the nerve but recommended that Schinbeckler get an

      MRI to rule out the possibility of a lesion in the affected area. He instructed

      Schinbeckler to return to him after having the MRI. He also noted that

      Schinbeckler had an unstable gait and was at risk for falling due to her foot drop

      issues.6 Schinbeckler had an MRI of her ankle performed on February 28, 2012.

      The MRI revealed a sharp angulation of the left peroneal nerve near the

      proximal fibula, with no lesions present.

[8]   Schinbeckler completed her first Accident Report with her employer on March

      2, 2012, over four months after her accident occurred. Schinbeckler admits that

      this date is the date that her employer’s worker’s compensation carrier,

      Travelers, first learned of her accident. See Appellant’s Br. p. 11 (“[O]n March

      2, 2012, Travelers became aware of Schinbeckler’s left ankle injury.”). Travelers

      then began an attempt to determine whether Schinbeckler’s mononeuropathy

      was caused by her October 31 accident.

[9]   Travelers requested authorization to obtain Schinbeckler’s medical records on

      March 9, 2012. On March 16, 2012, Travelers informed Schinbeckler that it had

      reviewed her medical records with a nurse. Importantly, as evidenced by emails




      6
          As noted by the Board, Schinbeckler did subsequently fall several times thereafter.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016    Page 5 of 17
       exchanged between Schinbeckler and Travelers’ claims adjuster, Linda Mueller

       (“Mueller”), Dr. Jelen could not opine as to whether Schinbeckler’s injuries

       were work related. In fact, Schinbeckler herself sent an email to Ortho Indy on

       March 19, 2012, in which she stated:

               Date of injury 10-31-2011 sprained left ankle at work. After
               injury didn’t heal & progressed into continuing pain & swelling
               with the end result of no mobility of foot. I didn’t file this initially
               as workers comp and should [have]. D[ue] to my own ignorance
               of the importance of this I need this to be refiled indicating the
               workers comp status. I also need the diag code to be reflective of
               the MRI results as a traumatic injury to my left leg that will
               require surgery for repair. Sorry for the additional work this has
               involved.


       Appellant’s App. p. 57.


[10]   On March 26, 2012, Travelers issued a Notice of Denial of Schinbeckler’s

       worker’s compensation claim, which stated in relevant part:


               Claim reported for left sprained ankle almost 4 months after
               incident. Claimant treated through her primary health insurance
               starting approximately 3 months after alleged sprained ankle. She
               now will require surgery for left foot-drop condition. Ortho
               records do not reflect that this condition is work related and she
               does have other personal health conditions which may be
               affecting her condition. We have requested personal health
               records and will consider IME to determine whether the current
               condition and recommended surgery is related to a sprained
               ankle from 10/31/11.


       Appellee’s App. p. 12.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 6 of 17
[11]   Schinbeckler still sought treatment and worker’s compensation coverage for her

       injuries. Travelers arranged for Schinbeckler to see another physician to

       determine if her medical issues were the result of her work injury. Schinbeckler

       was initially seen by Dr. Douglas Flory (“Dr. Flory”) at My OrthoTeam

       Emerson on May 17, 2012. Dr. Flory did not perform an examination at that

       time because he had not yet received Schinbeckler’s medical records. The

       examination was rescheduled, and Schinbeckler was seen by Dr. Flory on June

       7, 2012. Dr. Flory diagnosed Schinbeckler with peroneal neuropathy with

       associated foot drop resulting in an altered gait, along with continued swelling

       and weakness of the left ankle. Dr. Flory indicated that the injuries were related

       to the October 31 sprain that occurred at Schinbeckler’s place of employment

       and recommended nerve decompression surgery. Dr. Flory gave his report to

       Travelers on June 19, 2012. Eight days later, on June 27, 2012, Travelers

       notified Schinbeckler that Dr. Flory had concluded that her injuries were work

       related and authorized treatment for her that same day.

[12]   Dr. Jelen performed decompression surgery on Schinbeckler’s left peroneal

       nerve on July 11, 2012, but many of her problems persisted. After the issuance

       of Dr. Flory’s report, Schinbeckler’s medical expenses were paid by Travelers

       until her last visit to Ortho Indy in July 2014, and she received temporary total

       disability benefits from the date of her surgery until she returned to work in

       September 2012. Schinbeckler was discharged from Dr. Jelen’s care on March

       19, 2013, at which time he noted that Schinbeckler continued to suffer from a

       left foot drop with resulting gait abnormalities and balance issues. A subsequent


       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 7 of 17
       evaluation revealed that Schinbeckler could perform sedentary work. Dr. Jelen

       recommended that Schinbeckler continue to use a “quad” cane, a support hose,

       and an ankle foot orthosis brace. He also recommended a medical follow-up as

       needed for her left lower extremity injury and a handicap license plate, close

       parking at work, limited use of stairs, and a work-at-home-option, if available.

       Dr. Jelen gave Schinbeckler a 32% left lower extremity permanent partial

       impairment (“PPI”) rating, which he converted to a 13% whole person PPI.


[13]   To resolve Schinbeckler’s claim, Travelers offered her a 32% PPI rating of the

       lower left extremity, as indicated by Dr. Jelen. Schinbeckler declined this offer.

       Travelers then offered her a 13% whole person PPI rating, which Schinbeckler

       also declined.


                                             Procedural History

[14]   Express initiated an application for adjustment of claim before the Board after a

       dispute arose regarding the calculation of Schinbeckler’s PPI rating.

       Schinbeckler then filed her own application for adjustment of claim on October

       21, 2013, seeking compensation for a subsequent alleged injury and also seeking

       attorney fees. Both applications were tried before a single hearing member of

       the Board on September 24, 2014. The single hearing member characterized

       Schinbeckler’s claim for attorney fees as a request for an award for lack of due

       diligence on the part of Travelers. On October 22, 2014, the single hearing

       member found in relevant part:

               6. Travelers’ decision to obtain a second medical opinion from
               Dr. Flory was made after they were unable to obtain a clear
       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 8 of 17
               opinion on causation from Dr. Jelen. This is not an act of bad
               faith. However, the evidence does reveal that Schinbeckler’s
               medical treatment [w]as delayed for nearly five months (from her
               visit with Dr. Jelen of February 23, 2012 to her surgery of July
               11, 2012) as a result. There is no justification for the length of this
               delay. This is especially so given the seriousness of Schinbeckler’s
               injury and her substantial problems with mobility occurring as a
               result thereof.


               Greater dispatch should have been employed in the adjusting of
               this claim. There are a number or things that could have been
               done to expedite this process, the failure of which resulted in a
               substantial delay in the provision of necessary medical treatment
               for a serious injury. The greater weight of the credible evidence
               establishes that Travelers acted with a lack of diligence in
               adjusting Schinbeckler’s claim in this regard.


       Appellee’s App. p. 20.

[15]   Travelers then sought review by the full Board on November 21, 2014. On

       February 26, 2015, the Board issued an order reversing the single hearing

       member’s order on the issue of due diligence. The Board’s order did not,

       however, contain specific findings and conclusions.

[16]   Schinbeckler filed her notice of appeal from the Board’s order on March 23,

       2015. Then, on May 12, 2015, Schinbeckler filed a verified motion to remand

       the case with instructions for the Board to enter specific findings and

       conclusions as required by Indiana Code section 22-3-4-7. After Travelers filed

       a response, this court issued an order on May 26, 2014, which inter alia granted

       Schinbeckler’s motion and instructed the Board to enter specific findings and


       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 9 of 17
       conclusions within thirty days. The Board did so on June 18, 2015, finding in

       relevant part:

               6. Travelers’ decision to obtain a second medical opinion from
               Dr. Flory was made after they were unable to obtain a clear
               opinion on causation from Dr. Jelen. This is not an act of bad
               faith. Regret[t]ably, Schinbeckler’s medical treatment was
               delayed for nearly five months (from her visit with Dr. Jelen of
               February 23, 2012 to her surgery of July 11, 2012) as a result;
               however, the delay was not caused by Travelers’ failure or refusal
               to act. Schinbeckler has not met her burden of proving bad faith
               on the part of Travelers.


       Appellant’s App. p. 8. This appeal ensued.


                                            Standard of Review

[17]   Schinbeckler claims a lack of due diligence on the part of Travelers. Although a

       finding of “bad faith” requires evidence of a state of mind reflecting a dishonest

       purpose, moral obliquity, furtive design, or ill will, a finding of a lack of

       diligence requires no conscious wrongdoing by the actor. Eastern Alliance Ins.

       Group v. Howell, 929 N.E.2d 922, 926 (Ind. Ct. App. 2010) (citing Ag-One Co-op

       v. Scott, 914 N.E.2d 860, 864 (Ind. Ct. App. 2009).


               To act with “diligence” is to act with “caution or care” or “the
               attention and care required of a person.” Webster’s 3d New Int’l
               Dictionary 633 (2002). Hence, to act with a “lack of diligence” is
               to act without the degree of attention and care required of a
               person. Stated affirmatively, a lack of diligence is a failure to
               exercise the attention and care that a prudent person would
               exercise. That is, to act with a lack of diligence is to act
               negligently.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 10 of 17
       Howell, 929 N.E.2d at 926.


[18]   When reviewing a decision of the Board, we employ a two-tier standard of

       review. Scott, 914 N.E.2d at 862-63. First, we review the record to determine if

       competent evidence of probative value supports the Board’s findings. Id. at 863.

       We then determine whether the findings support the Board’s decision. Id. We

       are bound by the Board’s findings of fact and may not disturb the decision

       unless the evidence is undisputed and leads undeniably to a contrary

       conclusion. Id. We do not reweigh the evidence or assess the credibility of the

       witnesses. Id. However, when the question before this court is a legal question,

       we do not grant the same degree of deference to the Board’s decision. Id. (citing

       Walker v. Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 266 (Ind. 1998)). The law

       is the province of the judiciary, and our constitutional system empowers the

       courts to draw legal conclusions. Id. (citing Walker, 694 N.E.2d at 266).


[19]   We further observe that Schinbeckler bore the burden of proving that Travelers

       acted without due diligence. See Smith v. Bob Evans Farms, Inc., 754 N.E.2d 18,

       23 (Ind. Ct. App. 2001) (noting that worker’s compensation claimant bears the

       burden of proof). Therefore, Schinbeckler appeals from a negative judgment.

       When reviewing a negative judgment, we will not 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.

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



       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 11 of 17
                                         Discussion and Decision

[20]   Schinbeckler argues on appeal that the Board erred in concluding that

       Schinbeckler did not prove that Travelers did not act with due diligence.

       Schinbeckler refers to several instances which she argues supports her claim of a

       lack of due diligence.

[21]   First, she claims that Travelers failed to exercise the attention and care that a

       reasonably prudent person would have in determining whether her injury was

       work related. Schinbeckler refers to the email exchanges between her and

       Travelers’ claims adjuster Mueller in which Schinbeckler asked Mueller what

       information she needed to provide to Dr. Jelen for him to conclude that

       Schinbeckler’s injury was work related. Mueller never directly responded to this

       question, which Schinbeckler now claims is evidence of Travelers’ lack of

       diligence. Schinbeckler sent one email on March 16, 2012, stating, “In regards

       to my claim, what do you need from Dr. Jelen in regards to my injury

       happening at work.” Appellant’s App. p. 60.


[22]   On April 10, 2012, Mueller sent Schinbeckler an email informing her that she

       had faxed a letter to Dr. Jelen asking his opinion on whether Schinbeckler’s

       injury was work related. On April 23, 2012, Mueller sent Schinbeckler an email

       telling her that Dr. Jelen could not form an opinion on whether her injury was

       work related or not. This is not surprising. Dr. Jelen’s reports do not indicate

       that the injury was work related, and Schinbeckler herself effectively admitted

       that she did not inform the staff at Ortho Indy that her injury was related to an

       accident at work. We cannot say that Travelers failure to respond to this poorly
       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 12 of 17
       framed question constitutes evidence of lack of due diligence. Instead, when Dr.

       Jelen was unable to opine as to whether Schinbeckler’s injury was work related,

       Travelers sought the opinion of another physician, Dr. Flory. Although it took

       some time for Schinbeckler to finally see Dr. Flory, as discussed below, we do

       not think this delay was excessive.


[23]   Travelers did not learn of Schinbeckler’s injury until March 2, 2012. Travelers

       then requested Schinbeckler’s medical records and issued a denial of claim on

       March 26, 2012. As soon as April 4, 2012, Travelers informed Schinbeckler that

       they were attempting to schedule an appointment with another physician

       because Dr. Jelen could not opine as to the question of whether the injury was

       work related. Schinbeckler’s first appointment with Dr. Flory was on May 17,

       2012, but he did not examine her because he had not yet received her medical

       records. Then, On May 21, 2012, Mueller emailed Schinbeckler informing her

       that she would see Dr. Flory on June 7, 2012.


[24]   Thus, from the time Travelers learned of Schinbeckler’s injury to the time she

       was finally examined by Dr. Flory was just over three months. In this time,

       Travelers reviewed Schinbeckler’s claim with a nurse and initially denied it.

       When Dr. Jelen was unable to form an opinion on whether the injury was work

       related, Travelers sought the opinion of another physician. Once Dr. Flory

       issued his opinion that the injury was work related, Travelers authorized

       surgery. We cannot say that the Board was required to consider this delay as

       evidence of a lack of due diligence.



       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 13 of 17
[25]   Schinbeckler also complains that Travelers did not present any evidence that it

       contacted any of her coworkers who were present when she sprained her ankle

       at work. However, the burden of proof was on Schinbeckler, not Travelers.

       Smith, 754 N.E.2d at 23.


[26]   Schinbeckler next argues that Travelers did not respond to her requests that

       Travelers look at her Accident Investigation Report or look for the work order

       showing that the area where she tripped was later repaired. Schinbeckler again

       refers to an email she sent to Mueller stating: “Did you receive corrections from

       Dr. Flory[?] I looked at the accident report and it states the problem with the

       kitchen floor. I am sure you can get a copy of the work order showing the repair

       and the date that the job completed.” Appellant’s App. p. 72. However, this

       email was sent on June 26, 2012—after Dr. Flory’s examination and report and

       the day before Travelers authorized Schinbeckler’s surgery. This is clearly not

       evidence of Travelers lack of due diligence.7


[27]   Schinbeckler next claims that Travelers failed to exercise due diligence because

       no evidence in the record indicates that her injury was not work related. Again,

       this misallocates the burden of proof. It was Schinbeckler’s burden to prove her

       claim, not Travelers’ burden to disprove it. Moreover, this argument ignores the

       medical evidence indicating that Schinbeckler had issues with her legs and




       7
         Schinbeckler also claims that Travelers should have accepted the Accident Investigation Report as sufficient
       proof that her injury was work related. However, this report was filled out by Schinbeckler herself and does
       not appear to be any indication of the official position of her employer. We cannot fault Travelers for failing
       to consider Schinbeckler’s self-report as conclusive evidence regarding the nature of her injury.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016           Page 14 of 17
       ankle in the past. In fact, even Schinbeckler herself questioned at one point

       whether her ankle issues were due to her previously undiagnosed diabetes.

       Until Dr. Flory’s report, none of the medical records indicated that

       Schinbeckler’s injury was work related. Indeed, her own physician, Dr. Jelen,

       was unable to give an opinion on the matter. Under these facts and

       circumstances, we cannot say that Travelers’ decision to seek the medical

       opinion of another physician constituted a lack of due diligence.


[28]   Schinbeckler also claims that Travelers’ failure to have her medical records sent

       to Dr. Flory by the time of her first visit to him on May 17, 2012, is evidence of

       lack of due diligence. Obviously, this failure is not laudable. However, the

       Board was not obligated to view it as evidence of lack of due diligence. Not

       only did Travelers attempt to have Dr. Flory examine Schinbeckler without the

       medical records, it rescheduled the examination with Dr. Flory for June 7,

       2012. This is not an overly long delay.


[29]   The same is true for Schinbeckler’s argument regarding the twenty days it took

       Travelers to approve her surgery following the examination by Dr. Flory.

       Following her June 7, 2012 examination, Dr. Flory issued his report. Travelers

       received this report on June 19, 2012, only twelve days later. Eight days after

       receiving the report, Travelers approved Schinbeckler’s surgery. Although

       Schinbeckler argues that there is no explanation as to why it took twenty days

       for Travelers to receive Dr. Flory’s report, it actually only took twelve days.

       Again, it was Schinbeckler’s burden to prove her claim of lack of due diligence.

       Under these facts and circumstances, we cannot say that the Board clearly erred

       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 15 of 17
       by failing to view the twenty-day delay between Dr. Flory’s examination and

       Travelers’ approval of her treatment as evidence of a lack of due diligence.

[30]   Lastly, Schinbeckler claims that Travelers failed to exercise due diligence by

       evidence of the fact that she received no medical treatment for her injuries

       during the five months it took for her to receive surgery. Schinbeckler is

       referring to the time between March 2, 2012, when Travelers first learned of her

       injury, and July 11, 2012, when she underwent surgery. However, Schinbeckler

       herself waited from October 31, 2011, until March 2, 2012, to complete the

       accident investigation report which alerted Travelers of her injury. Once

       Travelers learned of the injury, it reviewed the medical records and found no

       indication that the injury was work related. Even when Schinbeckler’s own

       physician, Dr. Jelen, could not form an opinion on the matter, Travelers

       scheduled an examination by another physician, Dr. Flory. From the time

       Travelers learned of Schinbeckler’s injury (March 2, 2012) to the time it

       approved of her surgery (June 27, 2012), 117 days passed—just under four

       months. Her surgery took place fourteen days after it was approved. Although it

       is indeed unfortunate that Schinbeckler received no treatment for her injury

       during this time frame, and that, perhaps, Travelers could have done more to

       expedite Schinbeckler’s claim, we cannot say that the Board clearly erred in

       concluding that this delay was not evidence of a lack of due diligence. Indeed,

       the Board is much more familiar with the issues surrounding the scheduling of

       medical examinations and treatments than are we, and the Board was well




       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 16 of 17
       within its discretion to consider these delays as unfortunate, but not necessarily

       evidence of a lack of due diligence on the part of Travelers.

                                                  Conclusion

[31]   In short, certainly evidence exists of some delay between Travelers learning of

       Schinbeckler’s injury and the final approval of her treatment and eventual

       surgery, and Travelers might have been able to respond to Schinbeckler’s case

       more quickly. However, we are unwilling to substitute our judgment for that of

       the Board and conclude that the Board clearly erred in determining that

       Travelers exercised due diligence with regard to Schinbeckler’s claim.

       Schinbeckler’s arguments to the contrary are little more than a request that we

       consider facts not favorable to the Board’s decision, reweigh the evidence, and

       come to a conclusion other than that reached by the Board. This is not our role

       as an appellate court.


[32]   Accordingly, we affirm the decision of the Board denying Schinbeckler’s claim

       of a lack of due diligence on the part of Travelers.


[33]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1503-EX-176 | January 22, 2016   Page 17 of 17
