MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                     FILED
regarded as precedent or cited before any                                    Apr 20 2020, 9:19 am

court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
the defense of res judicata, collateral                                             Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David A. Kruse                                            R. Jay Taylor, Jr.
Kruse & Kruse P.C.                                        Carla R. Hounshel
Auburn, Indiana                                           Scopelitis, Garvin, Light, Hanson
                                                          & Feary, P.C.
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Kevin Arington,                                     April 20, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-EX-1732
        v.                                                Appeal from the Indiana Worker’s
                                                          Compensation Board
Eaton’s Trucking Service, Inc.,                           The Honorable Linda Peterson
Appellee-Defendant,                                       Hamilton, Chairman
                                                          Application No.
                                                          C-229754



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020                           Page 1 of 24
                               Case Summary and Issues
[1]   James Arington appeals the decision of the Full Worker’s Compensation Board

      (the “Board”) affirming the decision of a single hearing member who concluded

      that Arington was ineligible for further worker’s compensation benefits. The

      Board also denied Arington’s claims against his employer for bad faith and lack

      of diligence, among other claims. This case presents several issues, which we

      expand and restate as: 1) whether the Board erred in affirming the single

      hearing member’s determination, 2) whether the evidence supports the Board’s

      conclusion that Arington’s employer did not act in bad faith, and 3) whether the

      employer is entitled to appellate attorney fees. We conclude that the Board

      properly affirmed the single hearing member’s decision that Arington was

      ineligible for further benefits and that Arington did not prove his employer

      acted in bad faith. We also decline to award attorney fees to his employer.

      Accordingly, we affirm.



                            Facts and Procedural History
[2]   Arington is an employee of Eaton’s Trucking Service, Inc. (“Eaton’s”).

      Arington’s duties are to load semi-trucks from rail cars and drive the trucks to a

      designated factory. This case arises from an injury Arington suffered on

      November 11, 2014 in the course of his employment and the subsequent

      Application for Adjustment of Claim he filed on July 24, 2015. Arington also

      made claims against Eaton’s for lack of due diligence and bad faith, among

      other claims. See Exhibits, Volume III at 5-6.

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 2 of 24
[3]   The relevant terms in this case are as follows:


          • Temporary Total Disability (“TTD”) – TTD payments are made to

              compensate an employee during the treatment period in which the

              employee cannot return to work of the same kind and character as before

              the injury. Platinum Constr. Grp., LLC v. Collings, 988 N.E.2d 1153, 1156-

              57 (Ind. Ct. App. 2013).


          • Functional Capacity Evaluation (“FCE”) – An FCE is conducted to

              determine an employee’s capacity to perform work. See Exhibits, Vol. I at

              91.


          • Maximum Medical Improvement (“MMI”) – MMI occurs when an

              injured employee reaches a state where his condition cannot be improved

              any further. Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053, 1054 (Ind.

              1996).


          • Independent Medical Examination (“IME”) – The purpose of an IME is

              to determine whether an employee’s work-related injury has reached

              MMI. Appealed Order at 25.


          • Permanent Partial Impairment (“PPI”) – A PPI rating is assessed after a

              person has reached MMI such that the permanent impairment from the

              injury can be determined. Stump Home Specialties Mfg. v. Miller, 843

              N.E.2d 18, 22 (Ind. Ct. App. 2006).



      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 3 of 24
[4]   During the course of his treatment, Arington saw the following doctors, among

      others:


          • Dr. Thomas Lazoff – Dr. Lazoff specializes in pain management,

              physical medicine & rehabilitation, and pain medicine. Eaton’s directed

              Arington to receive treatment from Dr. Lazoff, who referred Arington to

              Dr. Johnathan Norton.


          • Dr. Johnathan Norton – Dr. Norton specializes in reconstructive foot

              and ankle care. Arington visited Dr. Norton at the request of Dr. Lazoff.


          • Dr. Shawn Kidder – Dr. Kidder is Arington’s primary care physician

              who specializes in family medicine. Arington visited Dr. Kidder on his

              own.


          • Dr. Amanda Vujovich – Dr. Vujovich specializes in foot and ankle care.

              Arington sought Dr. Vujovich’s opinion on his own.


          • Dr. Michael Shea – Dr. Shea specializes in bone, joint, spine, and muscle

              care. The Board appointed Dr. Shea to conduct the IME on Arington.

              Dr. Shea recommended that Arington undergo an EMG.


          • Dr. Mark Reecer – Dr. Reecer is an EMG specialist. Eaton’s initially

              chose Dr. Reecer to perform the EMG on Arington.




      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 4 of 24
[5]   On November 11, 2014, while loading a truck in the course of his employment,

      Arington injured his right ankle.1 Although Arington reported immediate pain,

      he did not go to the hospital until the next day. There, he was diagnosed with a

      sprained right ankle. The clinic notes suggest that Arington may have rolled his

      ankle a second time after the work injury. Reportedly, Arington has ongoing

      personal conditions such as arthritis, spurs, and osteochondritis affecting both

      of his ankles. Eaton’s had notice of Arington’s work injury and provided

      medical and TTD benefits while he was off work and seeking treatment.

      Arington received treatment from several medical providers for his work injury.

      In December of 2014, Arington was examined by Dr. Lazoff at the request of

      Eaton’s. Dr. Lazoff recommended that Arington undergo an MRI of his injured

      right ankle. Arington’s MRI results revealed no fracture or significant tissue

      abnormality; however, there were injuries to his ligaments. See Exhibits, Vol. I

      at 51-52. Arington was restricted from commercial driving and advised to wear

      an air cast boot. Dr. Lazoff then referred Arington to Dr. Norton, a foot and

      ankle specialist.


[6]   On January 7, 2015, Arington sought treatment from Dr. Norton. Dr. Norton

      opined that surgery to Arington’s right ankle was not necessary despite his

      partially torn ligaments because he did not suffer a complete tear of the deltoid.

      Dr. Norton also restricted Arington from commercial driving but advised him




      1
          The fact that Arington was injured in the course of his employment is not disputed.


      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020            Page 5 of 24
      that he could sit at work.2 Arington had a follow up with Dr. Norton in

      February. At this time, Arington complained about pain in both ankles but Dr.

      Norton advised Arington that his left ankle pain was not related to his work

      injury. Dr. Norton also explained to Arington that his right ankle would never

      be 100% no matter what treatment he receives. In the same month, Arington

      had a follow up with Dr. Lazoff. He also indicated that Arington would not

      likely have complete relief from his ankle injury given his chronic ankle

      conditions and lack of improvement to date. Arington then returned to Dr.

      Norton on March 3, 2015. Arington mentioned visiting “Dr. Hicks” from South

      Bend, Indiana for treatment, but Dr. Norton was unable to locate a doctor by

      that name; Dr. Norton believed that Arington was being misleading. Dr.

      Norton then gave Arington an injection in his right ankle to relieve some of his

      pain. Dr. Norton advised Arington that “most people would have already been

      back to work with this problem.” Id. at 73.


[7]   On March 4, Arington had a follow-up with Dr. Lazoff. Dr. Lazoff informed

      him that there was no further treatment to offer and explained that it was

      doubtful that surgical intervention would help; Dr. Lazoff recommended that

      Arington undergo an FCE. Before Arington underwent the FCE, he sought

      treatment from Dr. Kidder, his primary care physician, on March 13. Arington

      told Dr. Kidder that he wanted to discontinue wearing his air cast boot.

      Arington also told Dr. Kidder that he had collapsed after receiving the injection



      2
          The record is unclear if Arington returned to work on this restrictive basis.


      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020      Page 6 of 24
      from Dr. Norton. Dr. Kidder opined that Arington’s injury required surgical

      repair and that he would sustain 100% impairment to his right ankle without

      surgery. On April 7, Arington followed up with Dr. Norton and mentioned that

      he had collapsed from the injection. Dr. Norton consulted with Dr. Lazoff

      regarding this issue and both concluded that the injection would not have

      caused the side effects that Arington had reported.


[8]   On April 14, Arington underwent the FCE recommended by Dr. Lazoff.

      Although Arington stated that he was unable to perform work, the evaluator

      noticed that Arington’s fingernails were “soiled and [he had] a fair amount of

      callus formation . . . on both hands.” Id. at 144. The evaluation indicated that

      Arington was “attempting to control the test results to demonstrate more pain

      and disability than are actually present[.]” Id. at 151. Nonetheless, the

      evaluation showed that Arington’s ankle “has returned to normal or near

      normal function” and that he is able to work at medium physical demand for an

      eight-hour day. Id. at 144.


[9]   Arington continued to visit medical providers. On April 16, he sought treatment

      from Dr. Douglas Bolda on his own. Dr. Bolda did not have a surgical

      procedure that would help Arington’s ankle but recommended that Arington

      seek treatment from Dr. Karr, a foot and ankle specialist. At a follow-up

      appointment, Dr. Bolda asked Arington if he saw Dr. Karr; Arington responded

      that he did not because his insurance would not allow him to see Dr. Karr.

      Arington then said that he really did not want to see Dr. Karr because he had

      seen Dr. Karr in the past.

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 7 of 24
[10]   On April 20, Arington had a follow-up appointment with Dr. Lazoff. At this

       appointment, Dr. Lazoff reported to Arington that his work injury had reached

       a point of MMI and that there was no permanent impairment to his right ankle

       based on his FCE results. Arington submitted a letter to Eaton’s objecting to his

       FCE results and claiming that the results were inaccurate because the evaluator

       reported that he was not wearing his air cast boot. Nonetheless, in light of the

       reports from Drs. Norton and Lazoff, the results of Arington’s FCE, and his

       MMI status, Eaton’s notified Arington of its intent to terminate Arington’s

       TTD benefits as of May 4, 2015. As of May 4, Eaton’s had paid a total of

       $10,313.118 in TTD benefits to Arington.


[11]   Arington then requested an IME pursuant to Indiana Code section 22-3-3-7 to

       validate the opinions of Drs. Norton and Lazoff. The Board appointed Dr. Shea

       to perform the IME to determine whether Arington had reached MMI. See id.,

       Vol. IV at 59-60. Before undergoing the IME, Arington continued to visit

       various doctors. Among those, Arington sought treatment from Dr. Vujovich, a

       foot and ankle specialist. Arington indicated that he wanted surgery. However,

       after examining Arington’s ankle injury, Dr. Vujovich advised against surgery.


[12]   Arington then underwent the IME on July 6, 2015. Dr. Shea determined that

       his injuries were fairly unremarkable. Dr. Shea averred that Arington had

       received appropriate care to date, recommended an Electromyography




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 8 of 24
       (“EMG”) test3 on his right ankle to rule out any peroneal nerve issues, and

       opined that Arington was most likely at MMI if his EMG test was negative for

       any peroneal nerve injury. See id., Vol. I at 166. Dr. Shea also reported:


               At this point in time, I think he could return to just driving but I
               think he would have a little difficulty climbing up and down a
               semi cab, as well as he would have great difficulty loading and
               unloading, as well as doing any tarp or climbing on the semi. If it
               was just driving . . . I think it would be reasonable for him to
               return to that.


       Id. In September of 2015, Arington had a follow-up with Dr. Vujovich who

       issued a report disagreeing with Dr. Shea’s recommendation that Arington

       should undergo an EMG test, explaining that her physical exam findings did

       not show any signs of peroneal nerve injury. See id., Vol. II at 247. Dr. Kidder

       issued a report agreeing with Dr. Vujovich’s assessment stating, “I entrust

       [Arington’s] care to Dr. Vujovich as she specializes in this area . . . I do confer

       with Dr. Vujovich’s plan of care.” Id., Vol. III at 69.


[13]   Nevertheless, the Board instructed Eaton’s to schedule the EMG test by their

       choice of physician. The nurse case manager (“NCM”)4 on the case then




       3
        An EMG is a test that checks muscle and nerve health. See Healthline, Electromyography,
       http://www.healthline.com/health/electromyography [https://perma.cc/C7PK-QPEZ].
       4
         A NCM is a liaison between the medical providers, the employer, and the injured worker. The NCM’s role
       in worker’s compensation cases includes providing information and communication among the parties and
       medical providers, scheduling appointments, helping to facilitate care, and reporting back to the employer.
       See Worker’s Compensation Board of Indiana, Nurse Case Manager Guidelines,
       https://www.in.gov/wcb/2585.htm [https://perma.cc/3WG7-FXTZ].

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020                  Page 9 of 24
       assisted Eaton’s with arranging an EMG with Dr. Reecer to take place on

       August 4. Arington submitted a letter to Eaton’s requesting a different doctor

       because he previously had a dispute with Dr. Reecer. See id. at 18. Eaton’s,

       however, declined and stated that it had “the right to direct medical treatment

       under Indiana law.” Id., Vol. VI at 162. In any event, Arington attended the

       appointment but refused to undergo the EMG. Arington believed that Dr. Shea

       had examined his left ankle when recommending the EMG and wanted

       confirmation that the EMG was for his right ankle before undergoing the EMG.

       Despite multiple confirmations by Dr. Reecer that the EMG was for the right

       ankle, Arington refused to undergo the test. An employee with Dr. Reecer’s

       office characterized Arington’s behavior as “disruptive and belligerent.” Id.,

       Vol. III at 93. Finally, Dr. Reecer told Arington that he would reschedule the

       EMG and obtain a specific order from Dr. Shea confirming the test was to be

       conducted on the right ankle, which Dr. Shea subsequently provided. Because

       of Arington’s “refusal or obstruction” of the EMG, Eaton’s filed a notice to

       suspend Arington’s medical benefits the same day. Id. at 7.


[14]   Nonetheless, Eaton’s directed the NCM to reschedule the EMG with a different

       doctor. The NCM then rescheduled the EMG test with Dr. Todd Graham.

       Eaton’s informed Arington that if he failed to attend or refused to undergo the

       EMG test his medical and TTD benefits would not be reinstated. However,

       Arington filed an objection to the EMG test relying on the opinions of Drs.

       Vujovich and Kidder claiming there was no peroneal nerve injury and therefore




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 10 of 24
       an EMG was not medically warranted. The parties submitted the question of

       whether an EMG was necessary to the Board.


[15]   On December 1, a single hearing member of the Board held an interim hearing

       on issues related to the IME. The single hearing member concluded that

       Eaton’s did not wrongfully terminate TTD benefits and that the EMG test was

       not required based on Arington’s contention that the right peroneal nerve injury

       was ruled out as a work-related injury. See Appellant Appendix, Volume 2 at

       56-57. Arington appealed to the Board for review and the Board affirmed the

       single hearing member’s judgment on April 14, 2016.


[16]   A hearing was held before a single hearing member of the Board on January 23,

       2018 on Arington’s Application for Adjustment of Claim regarding medical

       benefits and compensation. The single hearing member entered its findings of

       fact and conclusions thereon on April 27. Pursuant to its findings and

       conclusions, the single hearing member awarded Arington additional

       compensation for TTD commencing on May 5, 2015 and ending on August 4,

       2015 for a total of $5,448.68. The single hearing member also awarded

       Arington compensation for 5% PPI for a total award of $2,654.75. Arington

       appealed the decision to the Board. On October 4, 2018, the Board adopted and

       affirmed the single hearing member’s decision. Arington’s remaining claims for

       bad faith, lack of diligence, and independent torts pursuant to Indiana Code

       section 22-3-4-12.1 went before the Board on April 30, 2019. The Board

       concluded that Arington did not meet his burden of showing that Eaton’s acted



       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 11 of 24
       in bad faith, lacked due diligence, or committed independent torts. Arington

       now appeals. Additional facts will be supplied as necessary.



                                  Discussion and Decision
                                       I. Standard of Review
[17]   The Indiana Worker’s Compensation Act (“the Act”) provides compensation

       for personal injury or death arising out of and in the course of employment.

       Ind. Code § 22-3-2-2(a). Our supreme court has held that the Act is to be

       liberally construed to “‘effectuate the humane purposes of the Act[.]’” Daugherty

       v. Indus. Contracting & Erecting, 802 N.E.2d 912, 919 (Ind. 2004).


[18]   Arington had the burden to prove a right to compensation under the Act. Bowles

       v. Gen. Elec., 824 N.E.2d 769, 772 (Ind. Ct. App. 2005), trans. denied. As such,

       he appeals from a negative judgment. In reviewing a negative judgment, we are

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

       trans. denied. We neither reweigh the evidence nor judge the credibility of the

       witnesses. Kovatch v. A.M. Gen., 679 N.E.2d 940, 942-43 (Ind. Ct. App. 1997),

       trans. denied. Instead, we examine the record only for substantial evidence and

       reasonable inferences that can be drawn therefrom supporting the Board’s

       findings and conclusions. Christopher R. Brown, D.D.S., Inc. v. Decatur Cty. Mem’l

       Hosp., 892 N.E.2d 642, 646 (Ind. 2008). The Board has a duty to issue findings


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 12 of 24
       that reveal its analysis of the evidence and that are specific enough to permit

       intelligent review of its decision. Perkins v. Jayco, 905 N.E.2d 1085, 1088 (Ind.

       Ct. App. 2009).


           II. Termination of Worker’s Compensation Benefits
[19]   Arington contends that the Board erred in finding that his TTD benefits should

       be terminated on August 4, 2015 because he still needed medical treatment after

       that date. We disagree. When an employee is injured on the job, the employer

       must furnish medical care to treat the worker’s injury. Ind. Code § 22-3-3-4(a).

       If the injured worker does not have the ability to return to work of the same

       kind or character during the treatment period for the injury, the worker is

       temporarily totally disabled and may be entitled to benefits. Ballard v. Book

       Heating & Cooling, Inc., 696 N.E.2d 55, 57 (Ind. Ct. App. 1998), trans. denied.


[20]   Once the injury has reached a permanent and quiescent state, the treatment

       period ends, and the extent of the permanent injury is assessed for

       compensation purposes. Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 1233,

       1239 (Ind. Ct. App. 2003). “The phrase ‘maximum medical improvement,’ also

       designated ‘quiescence’ in the jargon of worker’s compensation, essentially

       means that a worker has achieved the fullest reasonably expected recovery with

       respect to a work related injury.” Perkins, 905 N.E.2d at 1088-89. However,

       before an employer terminates TTD benefits, the employer must provide

       written notice to the worker of its intent to discontinue benefits. Ind. Code § 22-

       3-3-7(c). Indiana Code section 22-3-3-7(c) also provides in relevant part:


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 13 of 24
               . . . If the employee disagrees with the proposed termination, the
               employee must give written notice of disagreement to the board
               and the employer within seven (7) days after receipt of the notice
               of intent to terminate benefits. . . . If the board is unable to
               resolve the disagreement within ten (10) days of receipt of the
               notice of disagreement, the board shall immediately arrange for
               an evaluation of the employee by an independent medical
               examiner. The independent medical examiner shall be selected
               by mutual agreement of the parties or, if the parties are unable to
               agree, appointed by the board under IC 22-3-4-11. If the
               independent medical examiner determines that the employee is no
               longer temporarily disabled or is still temporarily disabled but can return
               to employment that the employer has made available to the employee, or
               if the employee fails or refuses to appear for examination by the
               independent medical examiner, temporary total disability
               benefits may be terminated.


       (Emphasis added.)


[21]   Eaton’s contends that the Board’s decision that Arington’s TTD benefits should

       terminate on August 4 was correct because his condition had reached MMI as

       of that date. Eaton’s terminated Arington’s TTD benefits on May 4, 2015 based

       on evidence that Arington’s injury had reached MMI. When Arington injured

       himself, he did not go to the hospital until the next day, despite his report of

       immediate pain. Instead, he continued to work. At the hospital, he was

       diagnosed with having a sprained right ankle, but the clinic notes suggest that

       Arington may have rolled his ankle a second time after the work injury

       occurred. Nonetheless, Arington’s MRI results revealed no fracture or

       significant tissue abnormality, although there were injuries to the ligaments of

       his right ankle. At that time, Arington was advised only to wear an air cast

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 14 of 24
       boot. Arington then sought treatment from Dr. Norton. Dr. Norton opined that

       surgery was not necessary because Arington did not suffer a complete ligament

       tear but restricted him to sit down work. Eventually, Dr. Norton explained to

       Arington that he had no further treatment to offer him and agreed to see him on

       an as-needed basis. Dr. Norton also opined that Arington should have been

       able to return to work with his injury. Dr. Norton’s opinion was supported by

       Arington’s FCE results that showed he was able to work at medium physical

       demand for eight-hour days. The FCE test also suggested that Arington’s

       injured right ankle had returned to normal or near normal function. After

       seeing Arington on April 20, Dr. Lazoff reported to Eaton’s that Arington’s

       condition had reached MMI and that Arington had sustained no permanent

       impairment to his right ankle. Eaton’s then notified Arington it would be

       terminating his TTD benefits as of May 4, 2015.


[22]   Arington then requested a Board-appointed IME. After conducting Arington’s

       IME, Dr. Shea had a similar report to that of Drs. Norton and Lazoff – that

       Arington had appropriate care and that his injury was likely at MMI. Although

       Dr. Shea believed that Arington would have difficulty loading his truck and

       climbing up and down to get in and out of the cab, he reported that Arington

       could still return to work but would be limited to only driving. However, Dr.

       Shea still recommended an EMG to rule out any peroneal nerve injury, because

       a negative result would confirm he was at MMI. Arington was scheduled for an

       EMG on August 4, 2015 but refused to undergo the EMG on that date. It is at

       this point that Eaton’s suspended Arington’s medical benefits because of


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 15 of 24
       Arington’s refusal. Nonetheless, Eaton’s and the NCM arranged a second

       EMG, but instead of undergoing the procedure, Arington conceded that

       peroneal nerve injury was ruled out as a compensable consequence of his work

       injury based on reports from Drs. Vujovich and Kidder.


[23]   Arington’s own concession, the reports from Arington’s medical providers, and

       Arington’s IME report support the inference that Arington’s injury had reached

       MMI by August 4 at the latest and he could return to work. There were no

       medical opinions by any foot and ankle specialist that surgery would be

       advisable for Arington, despite his wishes. We do not discredit the magnitude

       of Arington’s work injury. However, his continued pain was not only from his

       work injury. Instead, his preexisting medical conditions, namely arthritis, spurs,

       and osteochondritis, were also contributing factors for his pain as noted by

       medical providers. Furthermore, Arington’s misrepresentations undermine his

       credibility with respect to the severity of his injury. At one point, Arington

       mentioned seeking treatment from “Dr. Hicks” from South Bend, Indiana, but

       Dr. Norton was unable to locate a doctor by that name; Dr. Norton believed

       Arington was being misleading. Dr. Norton also gave Arington an injection

       which Arington claimed caused him to collapse. However, Drs. Norton and

       Lazoff concluded that the injection would not have had that effect. Also, Dr.

       Bolda asked Arington if he saw Dr. Karr as Dr. Bolda had suggested; Arington

       responded that he did not because his insurance would not let him see Dr. Karr.

       But then Arington changed his story and said that he really did not want to see

       Dr. Karr because he had seen Dr. Karr in the past. Moreover, Arington claimed


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 16 of 24
       that he had not been working but his FCE evaluator believed otherwise because

       his fingernails were soiled and both hands had calluses. Arington’s FCE report

       also indicated he was “attempting to control the test results to demonstrate

       more pain and disability than are actually present.” Exhibits, Vol. I at 151.

       Because of these misrepresentations, it is difficult to believe that Arington was

       sincere in his representations as to the severity of his injury or his inability to

       return to work.


[24]   Although Arington argues that there is evidence in the record supporting his

       need for additional medical treatment, his argument is simply an invitation for

       us to reweigh the evidence and judge his credibility against that of the medical

       providers, an invitation that we cannot accept. See Kovatch, 679 N.E.2d at 942-

       43. Based on our review, there is sufficient evidence in the record to show that

       Arington’s condition has reached MMI and thus, the Board did not err in

       finding that Arington’s TTD benefits should terminate on August 4, 2015.


[25]   Although Arington believes no PPI rating should have been assigned because

       he had not yet reached MMI, a claim we have decided against his position, he

       also argues that the Board abused its discretion in determining that he sustained

       5% impairment to his right ankle. PPI benefits are awarded because of “the

       partial or total loss of the function of a member or members of the body or the

       body as a whole.” Bowles v. Griffin Indus., 798 N.E.2d 908, 910 (Ind. Ct. App.

       2003). Therefore, “the aim of a PPI determination is to decide what parts of an

       employee’s body have lost their proper function and to what extent.” Id.

       Appellate review of the Board’s assessment of a worker’s PPI rating is limited

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 17 of 24
       and, as with all matters entrusted to the Board’s discretion, the Board’s decision

       must be affirmed if it is supported by the evidence. Bethlehem Steel Corp. v.

       Dipolito, 168 Ind. App. 417, 424, 344 N.E.2d 67, 71 (1976).


[26]   The Board reached the following conclusion concerning Arington’s PPI rating:


                14. . . . Dr. Norton reported that [Arington] was unlikely to
                achieve 100% improvement. Dr. Lazoff reported that [Arington]
                sustained no impairment. [Arington]’s primary care physician,
                Dr. Kidder, reported that [Arington] had lost 100% of the use of
                his right lower extremity. [Arington] has not suffered a complete
                loss of use of his right foot. Based on those opinions, and
                pursuant to the discretion afforded at Ind. Code § 22-3-3-
                10(i)(14), the Board concludes that [Arington] sustained a five
                percent (5%) impairment to the right foot due to injuries related
                to the November 11, 2014 accidental injury.


       Appealed Order at 18, ¶14. Arington argues that the Board should not have

       considered Dr. Lazoff’s zero percent PPI rating because it was based on the

       FCE report and that report fraudulently reported that he was not wearing his

       boot during the exam. See Brief of Appellant at 42; see also Exhibits, Vol. III at

       36-37. However, the FCE evaluator confirmed that whether “the client wore a

       boot during the FCE is irrelevant since the validity criteria of this test is based

       on the client’s ability to constantly put forth his/her best effort. The boot has no

       bearing on this.” Exhibits, Vol. I at 163.5 Therefore, Dr. Lazoff’s opinion was




       5
        Arington appears to have misinterpreted the report in claiming that the report falsely indicated that he did
       not have his boot on during the evaluation. The report does not state that Arington did not wear the boot.


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020                   Page 18 of 24
       not based on a fraudulent report. Nevertheless, Arington’s challenge appears to

       be solely to the credibility of the physicians, and we neither reweigh the

       evidence nor judge the credibility of the witnesses. See Kovatch, 679 N.E.2d at

       942-43. Arington claims that the PPI rating should be 100%, but based on the

       evidence, Arington has not suffered a complete loss of use of his right foot.

       There is sufficient evidence to support the Board’s conclusion that Arington

       suffered 5% impairment to his right ankle and therefore, the Board did not

       abuse its discretion in assigning a PPI rating.


                          III. Bad Faith and Lack of Diligence
[27]   Arington next argues that the Board erred in concluding there was insufficient

       evidence to find that Eaton’s had engaged in bad faith and acted with a lack of

       diligence. Indiana Code section 22-3-4-12.1(a) provides that the Board “has the

       exclusive jurisdiction to determine whether the employer, the employer’s

       worker’s compensation administrator, or the worker’s compensation insurance

       carrier has acted with a lack of diligence, in bad faith, or has committed an

       independent tort in adjusting or settling the claim for compensation.” Our

       courts have made it clear that “bad faith” and “lack of diligence” are distinct

       allegations. “[A] finding of bad faith requires evidence of a state of mind

       reflecting a dishonest purpose, moral obliquity, furtive design, or ill will. Poor

       judgment and negligence . . . do not amount to bad faith; the additional element




       Instead, it states that he was observed both with and without his boot. In any event, whether he had the boot
       on or not does not matter as indicated by the evaluator’s statement.

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020                  Page 19 of 24
       of conscious wrongdoing must be present.” Ag One Co-op v. Scott, 914 N.E.2d

       860, 864 (Ind. Ct. App. 2009) (quotation and citation omitted). However, “a

       lack of diligence requires no conscious wrongdoing by the actor.” Eastern

       Alliance Ins. Grp. v. Howell, 929 N.E.2d 922, 926-27 (Ind. Ct. App. 2010)

       (footnote omitted).


               To act with “diligence” is to act with “caution or care” or “the
               attention and care required of a person.” 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.


       Id. at 927 (citation and footnote omitted). The burden is on Arington to prove

       that Eaton’s acted in bad faith. Borgman v. Sugar Creek Animal Hosp., 782 N.E.2d

       993, 998 (Ind. Ct. App. 2002), trans. denied.


[28]   Arington’s argument on appeal seems to conflate “lack of diligence” and “bad

       faith,” but focuses primarily on bad faith. Therefore, we will only address the

       bad faith claim he presents on appeal. The Board concluded that there was no

       evidence indicating that Eaton’s or its insurance adjuster acted in bad faith. On

       appeal, Arington presents several arguments as to how he believes that Eaton’s

       acted in bad faith: 1) concealing evidence related to allegations that Arington

       was “disruptive and belligerent” at Dr. Reecer’s office before the EMG, 2)

       providing an illegal and fraudulent EMG prescription for his left leg, and 3)




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 20 of 24
       falsely claiming that Eaton’s had a right to direct medical treatment. See Br. of

       Appellant at 25-26.


[29]   First, Arington argues that Eaton’s acted in bad faith by improperly concealing

       documents showing how he was acting in a “disruptive and belligerent”

       manner at Dr. Reecer’s office for the first scheduled EMG. Id. at 26-27. He

       contends that production of these documents would have shown that he did not

       engage in that behavior and that Eaton’s improperly suspended his benefits for

       that reason. The record shows that Eaton’s suspended Arington’s benefits

       because he refused or obstructed the examination, not because of an allegation

       of “disruptive” or “belligerent” behavior as Arington contends. See Appellant’s

       App., Vol. 3 at 39. As such, any documents showing such behavior did not

       have any bearing on Eaton’s termination of his benefits and therefore, the

       Board did not err in concluding that Eaton’s did not act in bad faith.


[30]   Second, Arington argues that Eaton’s provided an illegal and fraudulent EMG

       prescription. Specifically, he contends that his EMG prescription instructed Dr.

       Reecer to perform an EMG of Arington’s “clutch leg” (left leg) instead of his

       right leg and that the NCM illegally altered the EMG prescription. Br. of

       Appellant at 50; see also Exhibits, Vol. I at 166. At the first EMG appointment,

       Arington emphasized that the order indicated the EMG was to be performed on

       his left leg instead of his right leg. Arington did not want to undergo the EMG

       unless this was corrected despite Dr. Reecer informing him that the EMG was

       in fact ordered for his injured leg. At the December 1, 2015 hearing, the NCM

       testified that she did not modify any EMG order; rather, she called Dr. Shea’s

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 21 of 24
       office and confirmed that the EMG was to be conducted on Arington’s right

       lower foot. See Transcript, Volume I at 74-75. In any event, Dr. Shea clarified

       his order and issued a written order for a second EMG on Arington’s right leg.

       See Exhibits, Vol. I at 168. Arington has failed to show Eaton’s engaged in ill

       will regarding his EMG prescription and therefore, the Board did not err in

       concluding that Eaton’s did not act in bad faith.


[31]   Last, Arington argues that Eaton’s falsely claimed that it had a right, under the

       Act, to direct his medical treatment. We disagree. In an August 4, 2015 letter,

       Eaton’s declined Arington’s request to change doctors for the EMG, noting that

       it had a right to direct his medical treatment. Indiana courts have long held that

       the employer or the employer’s insurer chooses the treating physician instead of

       the employee. Furno v. Citizens Ins. Co. of Am., 590 N.E.2d 1137, 1140 (Ind. Ct.

       App. 1992) (“Because the employer or insurer has the statutory right to select

       the treating physician, [employer’s] choice of a different physician for

       [employee] was not an illegal act.”), trans. denied. Therefore, Eaton’s was well

       within its authority to direct medical treatment for Arington. Arington has

       failed to show any ill will by Eaton’s in asserting or exercising this right and

       therefore, the Board did not err in concluding that Eaton’s did not act in bad

       faith.6




       6
        Arington also argues that his due process rights were violated when the Board did not order Eaton’s to
       provide all discovery, including unredacted NCM notes, claim notes, and a doctor’s prescription. See Br. of
       Appellant at 21. Generally, parties may obtain discovery of any nonprivileged matter relevant to the subject


       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020                  Page 22 of 24
[32]   In sum, Arington has failed to meet his burden in showing that Eaton’s acted

       with ill will or with conscious wrongdoing. Therefore, the Board did not err in

       concluding that Eaton’s did not act in bad faith.


                                    IV. Appellate Attorney Fees
[33]   Eaton’s requests that we assess sanctions in the form of attorney fees against

       Arington for his “reckless and spurious accusations of fraud, professional

       misconduct, and criminality.” Amended Brief of Appellee at 30. This court may

       assess attorney fees if an appeal is frivolous or in bad faith. See Ind. Appellate

       Rule 66(E). Our discretion to award attorney fees under this rule is limited to

       instances when an appeal is permeated with meritlessness, bad faith, frivolity,

       harassment, vexatiousness, or purpose of delay. Townsend v. Townsend, 20

       N.E.3d 877, 880 (Ind. Ct. App. 2014), trans. denied. And although our authority

       to award damages on appeal is discretionary, “we must use extreme restraint

       when exercising this power because of the potential chilling effect upon the

       exercise of the right to appeal.” Id. It is not intended to “punish mere lack of

       merit, but something more egregious.” Helmuth v. Distance Learning Sys. Ind.,

       Inc., 837 N.E.2d 1085, 1094 (Ind. Ct. App. 2005). After review of Arington’s




       matter involved in the pending litigation. Mulder v. Vankersen, 637 N.E.2d 1335, 1337 (Ind. Ct. App. 1994),
       trans. denied. “A denial of a request for discovery in itself is not a violation of due process protection.” Burke v.
       City of Anderson, 612 N.E.2d 559, 565 (Ind. Ct. App. 1993), trans. denied. Over Eaton’s objection, the Board
       issued a discovery order for Eaton’s to tender unredacted copies of the NCM’s notes for in camera review. See
       Appellant App., Vol. 2 at 164. Thereafter, Eaton’s provided the required documents to the Board. The Board
       then issued a second discovery order requiring Eaton’s to produce unredacted NCM notes and partially
       redacted copies of the claim notes to Arington if it had not already done so. See id., Vol. 4 at 48. Eaton’s then
       provided the required discovery to Arington and notified the Board that it had complied with the order. See
       id. at 50-95. Based on our review, there was no violation of Arington’s due process rights.

       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020                        Page 23 of 24
       brief, it does not appear to be “laced with unseemly invective” and “filled with

       unsupported accusations of conspiracies” as Eaton’s contends. Amended Br. of

       Appellee at 33. Arington’s brief does not overstep the bounds of zealous

       advocacy. Therefore, we can discern no basis for awarding attorney fees to

       Eaton’s.



                                               Conclusion
[34]   The Worker’s Compensation Act is to be liberally construed in order to

       effectuate its humane purpose, and even with this purpose in mind, we

       conclude these facts do not inescapably lead to a conclusion opposite the

       Board’s decision that Arington’s benefits properly terminated on August 4,

       2015 or that his PPI rating was 5%. We also conclude that Arington has not

       proven that Eaton’s acted in bad faith. Therefore, we affirm the decision of the

       Board. We also conclude that Eaton’s is not entitled to attorney fees.


[35]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-EX-1732 | April 20, 2020   Page 24 of 24
