Cavazos v. Midwest General Metals Corp.

• Decision Date: 04 March 2003
• Docket Number: No. 93A02-0209-EX-771.,93A02-0209-EX-771.
• Parties: Victor CAVAZOS, Appellant-Defendant, v. MIDWEST GENERAL METALS CORPORATION, Appellee-Plaintiff.
• Court: Indiana Appellate Court

783 N.E.2d 1233

Victor CAVAZOS, Appellant-Defendant, v. MIDWEST GENERAL METALS CORPORATION, Appellee-Plaintiff.

No. 93A02-0209-EX-771.

Court of Appeals of Indiana.

March 4, 2003.

Ryan A. Beall, LaPorte, IN, Attorney for Appellant.

Kristen K. Rollison, Indianapolis, IN, Attorney for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Victor Cavazos appeals the decision by the Worker's Compensation Board of Indiana (Board) ruling that Cavazos should receive no additional temporary total disability benefits (TTD benefits) and medical treatment from Midwest General Metals Corporation (Midwest). Specifically, Cavazos argues that the Board erred in finding that Midwest properly terminated his TTD benefits on the first two occasions because he refused the medical services provided to him and on the last two occasions because his injury had reached a permanent and quiescent state. Cavazos also argues that the Board erred in failing to order Midwest to provide additional medical services pursuant to the directive of an independent medical examiner.

Because we find that there is evidence that Cavazos refused the medical services provided to him, that his injury had reached a permanent and quiescent state by the time of the final termination of his TTD benefits, and that Midwest provided the medical services recommend by the independent medical examiner, we affirm in part. However, because on some occasions Midwest did not promptly provide Cavazos the proper notice of the termination of his TTD benefits and on one occasion failed completely to provide the proper notice, we reverse in part and remand to the Board to calculate the TTD benefits that Cavazos was entitled to during that period that he was without proper notice of the terminations. In addition, we find that Cavazos is also entitled to the TTD benefits from one of his terminations because the independent medical examiner found that Cavazos's injury had not yet reached a permanent and quiescent state and Midwest did not contest that determination.

Facts and Procedural History

Cavazos was an employee of Midwest with an average weekly wage of $251. On January 2, 1998, a steel beam fell on Cavazos while he was at work, fracturing his right ankle and causing severe contusions to his right forearm and both thighs. As a result of his injuries, metal screws and a metal plate were placed in Cavazos's right ankle. Midwest had notice of Cavazos's injury and immediately provided an authorized treating provider, Dr. William Biehl, and began paying TTD benefits at a rate of $167.46 per week. During the course of Cavazos's treatment, there was a diagnosis that he might be developing reflexive sympathetic dystrophy (RSD).

On April 24, 1998, Dr. Biehl terminated Cavazos's physical therapy and discharged Cavazos from his care after he became belligerent to him and his physical therapist. On May 22, 1998, Midwest's worker's compensation carrier (the Carrier) suspended Cavazos's TTD benefits because of Dr. Biehl's refusal to see him due to his verbal abusiveness. Tr. p. 168. On June 4, 1998, the Carrier sent Cavazos a Report of Claim Status (State Form 38911) giving notice of the suspension of his TTD benefits as well as a letter explaining that the suspension would continue until Cavazos began seeing another specified doctor. Tr. p. 172, 218-20. On July 7, 1998, Cavazos sought treatment from Dr. Annabelle Juhasz; however, Dr. Juhasz refused to see Cavazos because he insisted on having his wife in the examining room during the initial examination. Tr. p. 128. On July 15, 1998, the Carrier sent Cavazos a second State Form 38911 and a letter explaining that his benefits would remain suspended until he agreed to cooperate with the medical personnel retained by his employer. Tr. p. 221-22.

On July 31, 1998, Dr. Stephen Burns examined Cavazos and recommended that he see Dr. David Miller at the Woodland Pain Clinic for pain treatment. Cavazos began treatment with Dr. Miller on August 19, 1998. Tr. p. 124. After receiving a few treatments from Dr. Miller, Cavazos discontinued the treatment after the Carrier refused to reinstate his benefits. Cavazos returned to Dr. Miller in March of 1999, and on May 19, 1999, the Carrier reinstated Cavazos's TTD benefits. However, on July 12, 1999, the Carrier terminated Cavazos's benefits again after he missed physical therapy appointments on July 6 and 7, 1999, because of car trouble. Tr. p. 87-88. On August 9, 1999, Cavazos's benefits were reinstated.

On September 15, 1999, Cavazos's was sent to Dr. Jonathan Javors who conducted a bone scan. On October 15, 1999, Dr. Javors issued his opinion that Cavazos had a "15% foot impairment, a 10% lower extremity impairment, and a 5% whole person permanent partial impairment due to the fracture which he suffered." Appellee's App. p. 49. Dr. Javors also noted that there might also be a psychological component to Cavazos's injury. Cavazos then began psychological treatment with Dr. Ara Yerestein. In May of 2000, Dr. Yerestein released Cavazos from treatment finding that there was no disability from a psychiatric standpoint. The Carrier terminated benefits on May 28, 2000, because Cavazos had been released from treatment, and a State Form 38911 was sent to Cavazos on June 4, 2000, notifying him of the termination of benefits. Tr. p. 209, 223. Upon receiving the notice, Cavazos requested an independent medical examination (IME) on June 8, 2000.

The IME took place on September 22, 2000. On October 2, 2000, the independent medical examiner issued his report finding that Cavazos was still not able to return to work as a result of the injury he received and that he considered Cavazos to be disabled for an indefinite period of time. Appellee's App. p. 58. The independent medical examiner noted that an anesthesiologist specializing in pain management should evaluate Cavazos's condition and chance for improvement, and he noted that there was a strong psychological component to Cavazos's condition. On October 6, 2000, the Ombudsmen of the Worker's Compensation Board ordered that Cavazos's "(TTD) benefits should be reinstated from the date of termination and paid until he reaches medical quiescence." Appellee's App. p. 67. The Carrier reinstated TTD benefits on October 6, 2000.

On November 28, 2000, Cavazos was examined by Dr. Timothy King for his pain. Dr. King believed that Cavazos "has a legitimate somatic pain source but it is probably more related to original injury and post-operative intervention than it is to an RSD problem." Tr. p. 153. Dr. King recommended that Cavazos undergo vocational rehabilitation, treatment from a mental health worker, and conservative medical care for his pain problem but not specialized pain management. Tr. p. 153-54. On January 18, 2001, Dr. Yerestein found that "Mr. Cavazos's problem with anxiety does not prevent him, in and by itself, from functioning in gainful employment." Appellee's App. p. 65. Cavazos's benefits were terminated on January 25, 2001, and a State Form 38911 was sent January 29, 2001. Tr. p. 225.

This case arises from an Application for Adjustment of Claim filed by Cavazos on October 26, 1998, following the first suspension of his benefits. A single member of the Board held a worker's compensation hearing on Cavazos's claim on February 1, 2001. At the hearing, the parties made stipulations including that Cavazos sustained a 15% permanent partial impairment to his right foot as a result of the accident, and the parties submitted Cavazos's medical records. The parties stipulated that the issues to be determined by the single member were:

Whether the employee is entitled to temporary total disability benefits for any period of time between May 23, 1998 and May 18, 1999; July 13, 1999 and August 8, 1999; and May 29, 2000 and October 5, 2000;

Whether the employee has reached a permanent and quiescent condition;

Whether the employee has permanent restrictions;

Whether the employer is obligated to provide any additional statutory medical treatment.

Appellee's App. p. 5.

On July 18, 2001, the single member entered an award adopting the parties' stipulations as its findings and further found:

that based upon the evidence submitted, the employer's termination of Plaintiff's benefits was proper and supported by credible medical evidence.

It is further found that this single Hearing Member is convinced that the employer provided reasonable and necessary medical care.

It is further found that Plaintiff sustained a fifteen percent (15%) permanent partial impairment to the right lower extremity.

Appellee's App. p. 6. The award ordered that Cavazos be compensated at the statutory rate for his fifteen percent permanent partial impairment of his right lower extremity and that he should take nothing further by way of his Application for Adjustment of Claim. Appellee's App. p. 6. Cavazos appealed the decision to the full Board. On May 28, 2002, the majority of the full Board adopted and affirmed the single member's decision. This appeal ensued.

Discussion and Decision

On appeal, Cavazos argues that the Board erred in finding that Midwest properly terminated his TTD benefits on four different occasions: from May 23, 1998 to May 18, 1999; July 13, 1999 to August 8, 1999; May 29, 2000 to October 5, 2000; and after January 25, 2001. Cavazos also argues that the Board erred in failing to order Midwest to provide additional medical treatment pursuant to the Board's IME directive.

On an appeal from a decision of the full Worker's Compensation Board, we are bound by the Board's findings of fact and may only consider errors in the Board's conclusions of law. Luz v. Hart Schaffner & Marx, 771 N.E.2d 1230, 1232 (Ind.Ct.App.2002) (citing Ind.Code Ann. § 22-3-4-8(b)), reh'g denied, trans. denied. We cannot disturb the Board's factual determinations unless we conclude that the evidence is undisputed and leads inescapably to a contrary result. Id. We may consider only that...