 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                             Jul 09 2014, 10:30 am
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

ANN H. STEWART                                      RANDAL M. KLEZMER
KATHLEEN K. SHORTRIDGE                              Klezmer Maudlin, P.C.
Ice Miller LLP                                      Indianapolis, Indiana
Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARION COUNTY HEALTH                                )
DEPARTMENT,                                         )
                                                    )
       Appellant/Defendant,                         )
                                                    )
               vs.                                  )     No. 93A02-1402-EX-69
                                                    )
EDWARD HILL,                                        )
                                                    )
       Appellee/Plaintiff.                          )


         APPEAL FROM THE INDIANA WORKER’S COMPENSATION BOARD
                  The Honorable Linda Peterson Hamilton, Chairman
                             Application No. C-203789


                                           July 9, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                             Case Summary

       An employee injured on the job underwent back surgery without prior approval

from his employer. We conclude that the employee demonstrated “good reason” for the

unauthorized medical care and therefore affirm the Full Worker’s Compensation Board’s

decision to award the employee compensation and benefits related to his unauthorized

medical care.

                                    Facts and Procedural History

        Hill has been employed by the Marion County Health Department (“Health

Department”) as an administrative assistant in the Mosquito Control Division since 2000.

On April 22, 2009, Hill, sixty-three years old, felt a muscle pull in his lower back while he

was lifting and carrying tables. See Tr. p. 52 (Joint Stipulation of Facts). He reported his

injury to the Health Department that day. The Health Department authorized medical

treatment for Hill’s injury through Wishard Health Services Occupational Health Clinic

(“the Clinic”) and later Dr. Joseph Bergeron.1

       Hill was seen at the Clinic on April 23.2 He complained of lower back pain that

radiated into his right buttock with a burning and stinging sensation. Id. at 58. Hill was

prescribed ibuprofen and told to use ice. Id. He was released to work without any

restrictions. Id. at 62. Hill returned to the Clinic the next day and saw Dr. Gino Alberto,

an osteopathic doctor. Hill complained of pain in his lower back with a burning and



       1
         Wishard Health Services Occupational Clinic was the authorized medical provider for purposes
of Indiana Code section 22-3-3-4. Wishard Health Services, the public-health division of Health and
Hospital Corporation of Marion County, is now known as Eskenazi Health.
       2
           Hill noted in his prior medical history that he had back injuries in 1978, 1980, 1983, and 1996.
                                                      2
stinging sensation into his right buttock. Id. at 63. Dr. Alberto noted no radiation or

weakness and that the straight-leg-raise test was negative.3 Id. Dr. Alberto prescribed

Vicodin and released Hill to work without any restrictions. Id. at 65-66. On April 30, eight

days after the injury, Hill returned to the Clinic and complained that his lower back felt

like it was in a knot, the pain still radiated to his right buttock, and his right foot now felt

numb. Id. at 69. Dr. Alberto prescribed Naproxen. Id. at 70.

        Hill reported on May 7 that he was “[n]ot any better.” Id. at 74. While he “did have

some good days,” he had begun “to hurt again,” and the pain was radiating down his right

leg. Id. Dr. Alberto’s examination indicated tenderness at the lumbar paraspinals and

decreased sensation to light touch of Hill’s right foot and lateral right leg. Dr. Alberto

noted that the straight-leg-raise test was negative and that there was “no radiculopathy.”4

Id. at 74. Hill was referred to physical therapy.

        Hill underwent several physical-therapy sessions, but physical therapy did not help.

So Hill was referred back to the Clinic.

        Hill saw Dr. Alberto again on May 20. Hill said he felt like he had a knot in his

lower back (mid to right) and an ache that radiated down his right leg. Dr. Alberto

prescribed Vicodin and Naproxen and released Hill to work without any restrictions. Id.

at 87, 89.


        3
           The straight-leg-raise test is the most sensitive test for lumbar-disk herniation, with a negative
result strongly indicating against lumbar-disk herniation. See American Academy of Family Physicians,
Acute      Lumbar       Disk     Pain:       Navigating      Evaluation      and     Treatment       Choices,
http://www.aafp.org/afp/2008/1001/p835.html (last visited June 24, 2014).
        4
          Radiculopathy is a pinched nerve in the spine. It occurs when surrounding bones, cartilage,
muscle, or tendons deteriorate or are injured. The trauma causes these tissues to change position so that
they exert extra pressure on the nerve roots in the spinal cord. See Healthline, Radiculopathy (Pinched
Nerve), http://www.healthline.com/health/radiculopathy#Overview1 (last visited June 24, 2014).
                                                     3
       Hill returned to the Clinic for a follow-up visit on June 3. Dr. Alberto noted

“essentially no improvement.” Id. at 94. Dr. Alberto ordered an MRI for right L5-S1

radiculopathy. Id. at 95. The MRI revealed central to right-central disc extrusion at L4-

L5 in contact with the right L5 nerve root. Id. at 98. When Hill returned to the Clinic on

June 11, he continued to complain of pain in his lower back that radiated to his right leg.

Dr. Alberto prescribed Vicodin and Naproxen and referred Hill to Dr. Joseph Bergeron, a

physical-medicine and rehabilitation doctor.

       Hill saw Dr. Bergeron on June 17. Dr. Bergeron noted that Hill had discomfort with

palpation in his lower lumbar region, most notably with palpation in his right lumbosacral

gluteal region along the iliac crest and approaching the sacroiliac region. Dr. Bergeron

also noted that the straight-leg-raise test was negative. Dr. Bergeron reviewed Hill’s MRI

films and acknowledged a small right paracentral protrusion at L5-S1. He described this

as “modest without notable displacement of any lumbar nerve roots.” Id. at 106.            Dr.

Bergeron’s assessment was that Hill’s pain was largely “myofascial[5] in nature,

specifically pertaining to a right lumbosacral or gluteal strain. A component of pain may

be related to aggravation of the lumbar degenerative changes noted on his MRI.” Id. Dr.

Bergeron did not find any verifiable radicular signs. Id. at 107. Dr. Bergeron discontinued

physical therapy, administered a trigger-point injection, prescribed Ultram, and imposed a

twenty-pound lifting restriction at work. Id.




       5
          “Myofascial” means “of or relating to the fasciae of muscles.” Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/medical/myofascial (last visited June 24, 2014).
                                                4
       Hill returned to Dr. Bergeron on June 24. Hill reported a significant, but temporary,

reduction in pain after his injection.   Dr. Bergeron prescribed the muscle relaxer Flexeril

as well as physical therapy. Id. at 110.

       Hill received an initial evaluation at Advanced Physical Therapy Associates on June

30. Hill reported constant lower back pain with pain radiating down his right leg into his

foot. Hill’s treatment plan included physical therapy three times a week for two weeks.

       Hill returned to Dr. Bergeron on July 10. Hill reported that he was “essentially

unchanged” and that physical therapy was not “helpful.” Id. at 123. Likewise, Dr.

Bergeron’s assessment of Hill was unchanged. Hill underwent an epidural steroid injection

on July 15. Id. at 128.

       Hill was last seen by Dr. Bergeron on July 24. Hill reported reduction in pain after

his steroid injection. However, Hill said that the pain had returned and that he continued

to notice discomfort. Id. at 137. Hill also reported that his work restrictions did not impact

his usual work activity as an administrative assistant. Dr. Bergeron concluded that Hill

was at “maximal medical improvement,” there was no indication that he had sustained a

ratable impairment to his lumbar spine, and his “total whole person permanent partial

impairment rating is therefore zero percent.” Id. Dr. Bergeron prescribed Ultram and

Flexeril and released Hill from his care without any restrictions. Id. at 137, 138.

       On September 2 Hill sought further medical treatment on his own with Dr. Paul

Kraemer, an orthopedic spine surgeon with Wishard, although not an employer-authorized

treating physician. Hill’s treatment with Dr. Kraemer was processed through his own

health insurance. At this appointment, Hill described his back pain as “severe” and


                                              5
shooting down his right leg; Hill also said he had a numbing sensation in his right foot. Id.

at 141. Dr. Kraemer noted that the straight-leg-raise test was negative. Dr. Kraemer

diagnosed Hill with disk herniation on the right side causing some right L5 nerve root

compression. Id. at 141.

       On September 17 Hill returned to see a nurse at the Clinic. Unlike before, Hill was

now using a cane and missing work. Id. at 143. Hill reported that he had seen Dr. Kraemer

and was told that he needed surgery. When the nurse asked Hill why he had not returned

to the Clinic, Hill responded that the Clinic “could not do anything” for him. Id. at 143.

The nurse told Hill that she had to discuss the case with worker’s compensation and the

doctor and that his claim may not be covered through worker’s compensation. Id. In the

meantime, on September 23 Hill underwent a right selective L5 nerve root block through

Dr. Kraemer’s office. Id. at 145. Then, on October 1 Hill saw Dr. Alberto, who advised

him that if he wanted to be treated by Dr. Kraemer, he would be personally responsible for

his medical expenses. Id. at 146. Dr. Alberto also told Hill that “if” he felt his injury was

work-related and it was deemed to be work-related, “we would care for him and refer.” Id.

        On January 6, 2010, Dr. Kraemer performed back surgery (a laminectomy with

partial discectomy) on Hill. Id. at 186. At his follow-up two weeks later, Hill had good

relief of his leg pain and improving back pain. Id. Although Dr. Kraemer said Hill had

“less than the usual result of a discectomy”—which is not uncommon when worker’s

compensation patients return to work—he noted that Hill was making “no progress” under

the direction of Dr. Bergeron. Id. at 187.




                                             6
       Hill was off work from September 2, 2009, to January 27, 2010, which is when he

was in treatment with Dr. Kraemer and rehabilitating from surgery.

       Hill filed an adjustment for claim against the Health Department on April 5, 2010.

Appellant’s App. p. 13. A hearing was held before a single-hearing member of the

Worker’s Compensation Board on May 22, 2013. Both parties were represented by

counsel. Hill testified that when Dr. Bergeron released him from care without restrictions

on July 24, 2009, he was still having a lot of pain in his lower back and right leg. Tr. p.

20, 22. As a result of the pain, Hill decided to seek care elsewhere because he needed to

get better and neither Dr. Alberto nor Dr. Bergeron made him any better. Id. at 20, 24.

Hill also testified that after he informed the Clinic that Dr. Kraemer said he needed surgery,

Dr. Alberto offered to send him back to Dr. Bergeron; however, Hill did not want to go

back to Dr. Bergeron. Id. at 42. In addition, Hill testified that he was better after the

January 6, 2010, surgery with Dr. Kraemer. Id. at 25. Dr. Kraemer agreed that Hill was

better after the January 2010 surgery and assessed him a 13% permanent partial impairment

of the whole person as a result of his April 22, 2009, injury. Appellant’s App. p. 20-21.

Finally, Hill testified that he had additional back surgery after his January 2010 surgery,

but the subsequent surgery was not related to his worker’s compensation claim. Tr. p. 26-

27.

       The single-hearing member issued extensive findings and conclusions awarding

Hill statutory medical benefits for all treatment provided by Dr. Kraemer and related

medical providers for treatment of his disc injury at L4-5 from July 24, 2009, through

January 27, 2010. See Appellant’s App. p. 6-12. Hill was also awarded temporary total


                                              7
disability benefits from September 2, 2009, through January 27, 2010, and a 13%

permanent partial impairment of the whole person as a result his April 22, 2009, injury. Id.

Finally, Hill’s attorney was awarded attorney fees on his outstanding medical bills pursuant

to Indiana Code section 22-3-1-4. Id.

       The Health Department appealed to the Full Worker’s Compensation Board. The

Full Board heard arguments of counsel, following which all members of the Board affirmed

the decision of the single-hearing member. Id. at 4-5. The Health Department now appeals.

                                Discussion and Decision

       The Health Department contends that the Worker’s Compensation Board erred in

ordering it to pay for Hill’s back surgery because he did not seek prior approval for the

surgery and did not meet an exception when prior approval is not required.

       The Worker’s Compensation Board, as the trier of fact, has a duty to issue findings

that reveal its analysis of the evidence and that are specific enough to permit intelligent

review of its decision. Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App.

2009), trans. denied. In reviewing a worker’s compensation decision, an appellate court is

bound by the factual determinations of the Worker’s Compensation 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). We examine the record only to determine whether there is substantial

evidence and reasonable inferences that can be drawn therefrom to support the Worker’s

Compensation Board’s findings and conclusion. Id. As to the Worker’s Compensation

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


                                             8
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. The Worker’s Compensation

Board will be reversed only if it incorrectly interpreted the Worker’s Compensation Act.

Id.

       Indiana Code section 22-3-3-4 provides in relevant part:

       (a) After an injury and prior to an adjudication of permanent impairment, the
       employer shall furnish or cause to be furnished, free of charge to the
       employee, an attending physician for the treatment of the employee’s
       injuries, and in addition thereto such services and products as the attending
       physician or the worker’s compensation board may deem necessary. . . .

       (b) During the period of temporary total disability resulting from the injury,
       the employer shall furnish the physician, services and products, and the
       worker’s compensation board may, on proper application of either party,
       require that treatment by the physician and services and products be
       furnished by or on behalf of the employer as the worker’s compensation
       board may deem reasonably necessary.

                                         *****

       (d) If, because of an emergency, or because of the employer’s failure to
       provide an attending physician or services and products, or treatment by
       spiritual means or prayer, as required by this section, or because of any other
       good reason, a physician other than that provided by the employer treats the
       injured employee during the period of the employee’s temporary total
       disability, or necessary and proper services and products are procured within
       the period, the reasonable cost of those services and products shall, subject
       to the approval of the worker’s compensation board, be paid by the employer.

Our courts have long held that under the foregoing statute an employee generally is not

free to elect at the employer’s expense additional treatment or physicians other than those

tendered by the employer. Daugherty v. Indus. Contracting & Erecting, 802 N.E.2d 912,

915-16 (Ind. 2004) (citing K-Mart v. Morrison, 609 N.E.2d 17, 33 (Ind. Ct. App. 1993),

trans. denied; Richmond State Hosp. v. Waldren, 446 N.E.2d 1333, 1336 (Ind. Ct. App.


                                             9
1983); Perez v. U.S. Steel Corp., 172 Ind. App. 242, 359 N.E.2d 925, 927 (1977)). This

view is consistent with the majority rule, which provides:

           [I]t is generally held that the employee should ordinarily not incur medical
          expense without first giving the employer a reasonable opportunity to furnish
          such services, and an employee who does so will be liable for that expense.
          The mere fact that claimant has more faith in the family doctor, or lacks
          confidence in the employer’s doctor, is not enough to change the rule.

Id. at 916 (quoting 5 Arthur Larson & Lex K. Larson, Workers’ Compensation Law §

94.02[3] (2002). Nonetheless, the statute allows the employee to select medical treatment

under three circumstances: (1) in an emergency; (2) if the employer fails to provide needed

medical care; or (3) for other good reason. Ind. Code § 22-3-3-4(d); Daugherty, 802 N.E.2d

at 916.

          Thus, the question in this case is whether Hill was required to seek approval from

the Worker’s Compensation Board or the Health Department before undergoing back

surgery. See Daugherty, 802 N.E.2d at 917. The answer is generally yes. Id. However,

no prior approval is necessary: (1) in an emergency; (2) if the employer fails to provide

needed medical care; or (3) for other good reason. Id. At issue here is the “other good

reason” exception.

          Our Supreme Court explained in Daugherty:

          When an employee seeks treatment other than that provided by the employer
          or the [Worker’s Compensation Board], he or she does so at his or her own
          peril and risks not being reimbursed. The mere fact that the unauthorized
          medical treatment is an acceptable method of treating the condition does not
          mean that the employer should pay for the treatment. However as Professor
          Larson observes:

                 [D]ifficult questions can arise when there is a difference of
                 opinion on diagnosis or appropriate treatment, as when the


                                               10
              employer’s doctor recommends conservative measures while
              the claimant thinks he or she should have surgery.

       5 Larson, Larson’s Workers’ Compensation Law § 94–02[5], at 94-19
       (2002). “One way to settle this kind of controversy is to let the result turn on
       whose diagnosis proved to be right.” Id. Several jurisdictions have
       embraced this approach.

802 N.E.2d at 917. Our Supreme Court found a Virginia case, Shenandoah Products, Inc.

v. Whitlock, 421 S.E.2d 483 (Va. Ct. App. 1992), “particularly persuasive.” Daugherty,

802 N.E.2d at 918. In Whitlock, the employee suffered a work-related lower back injury

and was treated by several doctors, one of whom was designated as the authorized treating

physician. After reviewing tests from a physical therapist and neurologist, the treating

physician concluded that the employee could return to work without restrictions.

Apparently still in pain and dissatisfied with the evaluation, the employee sought the advice

of a specialist for a neurosurgical evaluation. At the specialist’s suggestion, the employee

underwent surgery. Before doing so, both the employer and treating physician refused

authorization for treatment. The State of Virginia’s Worker’s Compensation Commission

awarded medical expenses to the employee on grounds that she “‘benefited from the

surgery.’” Id. (quoting Whitlock, 421 S.E.2d at 485). The employer appealed, contending

that the surgery was not authorized and therefore the employer was not liable for payment.

Construing a worker’s compensation statute similar to our own, the Virginia Court of

Appeals noted that without a referral from an authorized treating physician, treatment by

an unauthorized physician is allowed in an “‘emergency’” or “‘for other good reason.’” Id.

(quoting Whitlock, 421 S.E.2d at 485). In that case there was no question that the treatment

the employee received was not required due to an emergency. However, acknowledging


                                             11
this was a case of first impression in Virginia and citing authority from other jurisdictions,

the Virginia Court of Appeals fashioned the following test:

       [I]f the employee, without authorization but in good faith, obtains medical
       treatment different from that provided by the employer, and it is determined
       that the treatment provided by the employer was inadequate treatment for the
       employee’s condition and the unauthorized treatment received by the
       claimant was medically reasonable and necessary treatment, the employer
       should be responsible, notwithstanding the lack of prior approval by the
       employer. These legal principles which provide a basis for the payment of
       unauthorized medical treatment are part of the “other good reasons test.”

Id. (quoting Whitlock, 421 S.E.2d at 486 (citations omitted)).

       Our Supreme Court agreed with Virginia’s approach and adopted the test as

appropriate for evaluating the existence of good reason under Section 22-3-3-4. Id. at 918-

19. The Court added that the test was consistent with the longstanding rule in this State:

the terms of the Worker’s Compensation Act are to be liberally construed so as to effectuate

the humane purposes of the Act, and doubts in the application of terms are to be resolved

in favor of the employee. Id. at 919. Finally, our Supreme Court noted that reimbursement

for medical treatment not authorized by the employer or the Worker’s Compensation Board

should be the rare exception. Id.

       Using the Daugherty test, the Health Department argues that Hill did not (1) obtain

medical treatment from Dr. Kraemer in good faith, (2) prove that the medical care it

provided was inadequate, and (3) prove that the unauthorized treatment was medically

reasonable and necessary. On these points, the single-hearing member concluded:

       Here, Dr. Bergeron, a physiatrist, released [Hill] from further medical care
       while [Hill] was clearly still symptomatic. He dismissed or ignored [Hill’s]
       continued and consistent complaints of radicular lower extremity symptoms
       on the basis that his objective testing failed to verify a radicular component
       to [Hill’s] presentation. This was done even though diagnostic testing (an

                                             12
       MRI) correlated with [Hill’s] subjective complaints (presence of a disc bulge
       at L4-5 with nerve root compression). In addition, [Hill] was found to be a
       credible witness and there is no evidence whatsoever that [Hill’s]
       degenerative spine condition had been symptomatic in the 13 years preceding
       [his] work injury. Dr. Kraemer, an orthopedic spine surgeon, opined that
       [Hill] had sustained a lumbar disc injury with nerve root compression as a
       result of his work injury of April 22, 2009. Dr. Kraemer’s surgery medically
       benefitted [Hill]. The Defendant was timely advised of [Hill’s] need for
       additional medical treatment and contemplated spine surgery with an
       orthopedic surgeon. Instead of referring [Hill] to an orthopedic surgeon of
       its own choice for further evaluation, the Defendant offered to refer [Hill]
       back to Dr. Bergeron, likely an effort in futility, as demonstrated by the facts
       and circumstances of this case.

       While an award of unauthorized medical treatment is, and rightly should be,
       rare, the undersigned finds, given the totality of the circumstances, that [Hill]
       had good cause for seeking treatment with Dr. Kraemer and the evidence
       further establishes that the treatment provided by Dr. Kraemer was
       reasonable and necessary and improved [Hill’s] medical condition.
       Consequently, the undersigned concludes that the greater weight of the
       credible evidence establishes that [Hill] suffered an L4-5 disc injury as a
       result of his accidental injury of April 22, 2009 and is entitled to an award of
       statutory medical expenses for the medical evaluation, treatment, and care of
       this injury provided by Dr. Kraemer subsequent to Dr. Bergeron’s release of
       July 24, 2009 though Dr. Kraemer’s post-operative visit of January 27, 2009.
       ...

Appellant’s App. p. 11.

       As for good faith, the record shows that Hill sought treatment from Dr. Kraemer

without obtaining approval of the Health Department or the Worker’s Compensation

Board. When Dr. Bergeron released Hill from his care on July 24, Hill was still in pain,

and there was an MRI to support Hill’s complaints. Physical therapy had not worked, and

although the steroid injection had helped, it did so only temporarily. Hill saw Dr. Kraemer

on September 2; he told the Clinic on September 17 that Dr. Kraemer had recommended

surgery. Dr. Alberto told Hill on October 1 that “if” his injury was determined to be work-

related (although Dr. Alberto had already treated Hill on several occasions for his work-

                                              13
related injury), they would treat and refer him; however, if Hill continued to seek treatment

from Dr. Kraemer, he would be personally responsible for the medical expenses. Tr. p.

146. Hill testified at the hearing that Dr. Alberto would refer him back to Dr. Bergeron,

which the single-hearing member found to be “an effort in futility” given the facts in this

case. Appellant’s App. p. 11. Based on these facts, we find that Hill acted in good faith

when he sought treatment from Dr. Kraemer without obtaining approval of the Health

Department or the Worker’s Compensation Board.

       The record also shows that the course of treatment being offered by the Health

Department was inadequate. Despite the efforts of two physicians and other health-care

professionals, Hill still suffered pain in his lower back and right leg/foot and was getting

progressively worse. In fact, at his September 17 visit to the Clinic, Hill was using a cane

and not working even though Dr. Bergeron had concluded less than two months earlier that

Hill was at “maximal medical improvement,” there was no indication that he had sustained

a ratable impairment to his lumbar spine, and his “total whole person permanent partial

impairment rating [wa]s . . . zero percent.” Tr. p. 137, 143.

       Finally, the single-hearing member found that Dr. Kraemer’s treatment was

“reasonable and necessary” and had “improved [Hill’s] medical condition.” Appellant’s

App. p. 11. We agree. The record shows that both Hill and Dr. Kraemer found that the

surgery had improved Hill’s condition, even if less than the usual amount, and that Hill

was making “no progress” under the direction of Dr. Bergeron. Tr. p. 186-87. In sum, the

record is sufficient to demonstrate that Hill’s decision to obtain unauthorized medical care

fell under the “other good reason” exception to the general rule that an employee is not free


                                             14
to elect, at the employer’s expense, additional treatment or physicians other than those

tendered by the employer. We therefore affirm the Full Board.

      Affirmed.

NAJAM, J., and BROWN, J., concur.




                                          15
