Ballard v. Book Heating & Cooling, Inc.

• Court: Indiana Appellate Court
• Writing for the Court: BAKER
• Citation: Ballard v. Book Heating & Cooling, Inc., 696 N.E.2d 55 (Ind. App. 1998)
• Decision Date: 14 May 1998
• Docket Number: No. 93A02-9712-EX-807,93A02-9712-EX-807
• Parties: Lloyd K. BALLARD, Sr., Appellant-Plaintiff, v. BOOK HEATING & COOLING, INC., Appellee-Defendant.

Page 55

696 N.E.2d 55

Lloyd K. BALLARD, Sr., Appellant-Plaintiff, v. BOOK HEATING & COOLING, INC., Appellee-Defendant.

No. 93A02-9712-EX-807.

Court of Appeals of Indiana.

May 14, 1998.

Transfer Denied Oct. 13, 1998.

Richard R. Fox, Steven A. Gustafson, Fox & Cotner, New Albany, for Appellant-Plaintiff.

Anthony K. Finaldi, Ferreri, Fogle, Pohl & Picklesimer, Louisville, KY, for Appellee-Defendant.

OPINION

BAKER, Judge.

We are asked to decide, as a matter of first impression, whether a claimant is entitled to an award of temporary total disability payments, while simultaneously receiving unemployment compensation benefits. Appellant-plaintiff Lloyd K. Ballard appeals a judgment from the Worker's Compensation Board (Board) entered in favor of appellee-defendant, Book Heating and Cooling Inc. (Book Heating), claiming that the Board erred in denying his claim for temporary total disability payments. Specifically, Ballard contends that the Board's decision denying his claim for temporary total disability benefits while he simultaneously drew unemployment compensation is contrary to law and against public policy.

FACTS

The facts most favorable to the Board's decision reveal that during Ballard's employment at Book Heating, he sustained an injury to his lower back in August of 1995. As a result of this injury, it was eventually determined that Ballard sustained a five percent whole body permanent partial impairment, and was subsequently terminated from Book Heating on February 9, 1996. Immediately thereafter, Ballard applied for, and began receiving unemployment benefits in March of 1996.

On March 5, 1996, Ballard was placed on medical leave by Dr. Timir Banerjee, who had treated Ballard at Book Heating's request. Approximately one week later, Dr. Banerjee diagnosed Ballard with a herniated disc and recommended that Ballard not work for approximately one month. Dr. Banerjee's prescribed treatment included "conservative care and temporary physical restrictions." Record at 6. Ballard continued his medical leave status as ordered by several treating physicians until August 28, 1996, when it was determined that Ballard had reached maximum medical improvement. Thereafter, Ballard applied for temporary total disability benefits under the Indiana Worker's Compensation Act. Following a hearing on February 20, 1997 before an administrative law judge (ALJ), Ballard was granted temporary total disability benefits from the time that Dr. Banerjee released Ballard from work on March 13, 1996, until August 28, 1996. However, the ALJ also determined that Ballard was not entitled to temporary total disability benefits for the period of time in which he received unemployment compensation benefits. The Board adopted the ALJ's decision on November 3, 1997, and Ballard now appeals.

DISCUSSION AND DECISION

I. Standard Of Review

When reviewing a decision of the Workers' Compensation Board, we are bound by the factual determinations of the Board and will not disturb them unless the evidence is undisputed and leads inescapably to a contrary conclusion. Rogers v. Bethlehem Steel Corp., 655 N.E.2d 73, 75 (Ind.Ct.App.1995). We must disregard all unfavorable evidence and must examine only that evidence and the reasonable inferences therefrom which support the Board's findings. Four Star Fabricators, Inc. v. Barrett, 638 N.E.2d 792, 794 (Ind.Ct.App.1994). Further, this court neither reweighs the evidence nor judges the credibility of the witnesses. Id. We pay due deference to the interpretation of a statute by the administrative agency charged with its enforcement in light of its expertise in its given area. Natural Resources Comm'n v. Porter County, 576 N.E.2d 587, 589 (Ind.1991).

II. Entitlement To Temporary Total Disability Benefits

Ballard claims that the Board erred in determining that he was precluded from receiving temporary total disability benefits during the period of time in which he drew unemployment compensation. Specifically, Ballard contends that, although a determination was made declaring him "physically and mentally able to work" as defined in IND. CODE § 22-4-14-3, ¹ he should not be precluded from also receiving temporary total disability benefits.

We initially observe that our research reveals no Indiana case directly on point. Therefore, we turn to other jurisdictions for guidance. A review of the opinions from other states reveals a split of authority with regard to whether the receipt of either workers' compensation or unemployment benefits precludes an entitlement to the other. Some states allow awards of both workers' compensation and unemployment benefits simultaneously. See, e.g., Levi Strauss & Co. v. Laymance, 38 Ark.App. 55, 828 S.W.2d 356 (1992) (claimant may receive both unemployment benefits and worker's compensation where statute does not expressly forbid entitlement to both); Accord Mendez v. Southwest Com. Health Serv., 104 N.M. 608, 725 P.2d 584 (1986); Neuberger v. City of Wilmington, 453 A.2d 804 (Del.Super.Ct.1982); Stafford v. Welltech, 867 P.2d 484 (Okla.Ct.App.1993). The rationale in this line of cases for permitting recovery under the worker's compensation act and the unemployment compensation act appears to be that the statutes do not prohibit a dual recovery, along with the beneficent objectives of both workers' compensation and employment security legislation. Memorial Hosp. Of Dodge County v. Porter, 4 Neb.App. 716, 548 N.W.2d 361, 365 (1996).

The reported cases from other states have either denied or reduced the unemployment benefits by the amount of workers' compensation the claimant receives, or vice versa. See e.g., Cuellar v. Northland Steel, 226 Mont. 428, 736 P.2d 130 (1987) (employment benefits must be offset against workers' compensation payments); St. Pierre v. Fulflex, Inc., 493 A.2d 817 (R.I.1985) (legislature clearly intended that Workers' Compensation Act and Unemployment Security Act be construed together, thus prohibiting claimant from receiving both unemployment compensation and workers' compensation payments for the same period). The cases denying dual recovery either rely upon statutory language forbidding recovery or upon the notion that if one is receiving workers' compensation, he is unable to work, and, therefore, unable to receive unemployment benefits, the purpose of which is to protect able-bodied workers while unemployed through no fault of their own. Wells v. Pete Walker's Auto Body, 86 Or.App. 739, 740 P.2d 245 (1987); St. Pierre, 493 A.2d at 818.

We now turn to the instant case. The purpose of awarding temporary...