Houchins v. Kittle's Home Furnishings

• Decision Date: 14 April 1992
• Docket Number: No. 93A02-9108-EX-330,93A02-9108-EX-330
• Citation: 589 N.E.2d 1190
• Parties: Barbara HOUCHINS, Appellant-Plaintiff, v. KITTLE'S HOME FURNISHINGS, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1190

589 N.E.2d 1190

Barbara HOUCHINS, Appellant-Plaintiff, v. KITTLE'S HOME FURNISHINGS, Appellee-Defendant.

No. 93A02-9108-EX-330.

Court of Appeals of Indiana Fifth District.

April 14, 1992.

Stephen B. Caplin, Caplin Pehler Park & Tousley, Indianapolis, for appellant-plaintiff.

Michael V. Gooch, Douglas A. Tresslar, Harrison & Moberly, Indianapolis, for appellee-defendant.

SHARPNACK, Judge.

Barbara Houchins appeals from a ruling of the Indiana Worker's Compensation Board ("board") suspending her compensation based upon her refusal of medical services. We affirm.

Houchins raises four issues for review which we consolidate and restate as:

1. Whether, under the worker's compensation statute, Kittle's, Houchins' employer, could unilaterally suspend temporary total disability ("TTD") payments based upon Houchins refusal to undergo treatment recommended by the doctor provided by Kittle's.

2. Whether Kittle's provided Houchins with proper notice of the consequences of her refusal of services.

The parties submitted their dispute to the board upon agreed facts. On December 17, 1988, Houchins injured her back in an accident arising out of the course of her employment with Kittle's. Houchins executed an agreement with Commercial Union ("Commercial"), Kittle's insurer, providing her with weekly benefits for her TTD. The parties subsequently modified the agreement due to an erroneous calculation of her weekly wage. The board entered an award on the modified agreement.

Commercial requested that Houchins submit to an examination to determine if she was a candidate for participation in a pain management program at Community Hospital, and Houchins complied. Following the examination, Dr. Kravitz, the examining physician, recommended that Houchins be admitted to Community Hospital. On June 6, 1990, Commercial notified Dr. Kravitz of its decision to accept his recommendation that Houchins be enrolled in the pain management program and also wrote Houchins' attorney informing him of Commercial's decision. The latter correspondence stated that "if Mrs. Houchins is not enrolled at the earliest opportunity, [Commercial] will consider this a refusal to seek medical attention and all compensation will be ended." (Record, 30.)

On June 18, Houchins' attorney wrote Commercial informing Commercial that Houchins was willing to commence the in-patient pain management program at Community Hospital. Houchins scheduled an appointment for evaluation with regard to her participation in the pain management program. Houchins kept the August 27 appointment, following which Dr. Manders, the examining physician, concluded that she was a reasonable candidate for the treatment from a medical standpoint. Houchins refused treatment at Community Hospital even though the program had a bed available on September 22. Commercial informed Houchins' attorney by letter that, due to Houchins' refusal, Commercial had the right to cease paying compensation. Houchins again declined admission to Community on September 29.

Houchins responded on October 5, 1990, by filing an application for adjustment of claim. In addition, on October 24, 1990, Houchins requested a "five day order." The parties agreed to submit the cause to the board on the following issues of law: whether Kittle's could unilaterally terminate compensation payments based upon Houchins' refusal to enroll in the pain management program, and, if so, whether Kittle's had provided Houchins with notice as required by the statute. The parties submitted briefs in support of their positions and attached exhibits to those briefs. Neither party presented any testimony or other evidence. On February 11, 1991, a single hearing member of the board denied Houchins' request for a five-day order and issued an order suspending her rights and benefits until she accepted the offered services and supplies. On July 31, 1991, the full board adopted the decision of the single hearing member.

On appeal, we are bound by the factual determinations of the Workers' Compensation Board. Ind.Code Sec. 22-3-4-8 (1991). We will not disturb the board's findings unless the evidence is undisputed and leads inescapably to a contrary result. Sears Roebuck & Co. v. Murphy (1987), Ind.App., 508 N.E.2d 825, 829, reh'g denied, Sears Roebuck & Co. v. Murphy (1987), Ind.App., 511 N.E.2d 515, reh'g denied. In reviewing the findings of the board, we may not disregard any reasonable inferences drawn by the board from the facts that the evidence tends to prove. Furthermore, we are required to disregard all evidence which is unfavorable to the board's findings and consider only those facts and reasonable inferences which support such findings. Id. However, the standard for review of agency conclusions of law is different. This court is not bound by the agency's interpretations of law. Public Employees Retirement Fund v. Miller (1988), Ind., 519 N.E.2d 732, 733. When an agency interprets its own statute, the reviewing court should afford the agency's interpretation great weight, but the court is not bound by the agency's interpretation and should reverse if the agency incorrectly interpreted the statute. Department of Environmental Management v. AMAX, Inc. (1988), Ind.App., 529 N.E.2d 1209, 1214.

Houchins concedes that an employer may suspend permanent partial impairment ("PPI") compensation payments based upon an unreasonable refusal of medical services. I.C. Sec. 22-3-3-4(c); Pipkin v. Continental Steel Corp. (1938), 105 Ind.App. 669, 671, 16 N.E.2d 984, 986. Houchins also concedes that an employer may do so unilaterally upon providing proper notice. However, Houchins contends that an employer's right to suspend payments is limited by I.C. Sec. 22-3-3-4(c) to compensation for PPI and does not extend to TTD payments.

Houchins relies upon the structure of I.C. Sec. 22-3-3-4 which, at the time of the hearing in this case, provided:

(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 his injuries, and in addition thereto such surgical, hospital and nursing services and supplies as the attending physician or the worker's compensation board may deem necessary....

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

(c) After an employee's injury has been adjudicated by agreement or award on the basis of [PPI] and within the statutory period for review of such cases, ... the employer may continue to furnish a physician or surgeon and other medical services and supplies, and the worker's compensation board may within the statutory period for review as provided in section 27 of this chapter, on a proper application of either party, require that treatment by that physician and other medical services and supplies be furnished by and on behalf of the employer as the worker's compensation board may deem necessary to limit or reduce the amount of the employee's impairment. The refusal of the employee to accept such services and supplies, when provided by or on behalf of the employer, shall bar the employee from all compensation otherwise payable during the period of the refusal, and his right to prosecute any proceeding under IC 22-3-2 through 22-3-6 shall be suspended ... until the employee's refusal ceases. The employee must be served with a notice setting forth the consequences of the refusal under this section. The notice must be in a form prescribed by the worker's compensation board. No compensation for permanent total impairment, [PPI], permanent disfigurement, or death shall be paid or payable for that part or portion of the impairment, disfigurement, or death which is the result of the failure of the employee to accept the treatment, services, and supplies required under this section. (Emphasis added.)

According to Houchins, if the legislature had intended to allow unilateral termination of TTD benefits, it would have included under subsection (b) language similar to the refusal provision of subsection (c). We disagree.

The relevant language clearly refers to medical services provided by or on behalf of the employer without regard to which subsection directs or authorizes those services. Subsections (a), (b) and the first part of (c) set forth the employer's duty (in (a) and (b)) and right (in (c)) to provide medical services at different stages in the worker's compensation process but those subsections do not purport to cover different services. With regard to the refusal provision, no attempt is made to reference the "services" according to the differing conditions under which they could be supplied; rather, the statute speaks simply to the refusal of "such services." In addition, the last portion of the refusal provision states that no compensation shall be payable for "permanent total impairment, PPI, [etc.] ... which is the result of...