Luz v. Hart Schaffner & Marx

• Decision Date: 25 July 2002
• Docket Number: No. 93A02-0110-EX-645.,93A02-0110-EX-645.
• Citation: 771 N.E.2d 1230
• Parties: Vicki LUZ, Appellant, v. HART SCHAFFNER & MARX, Appellee.
• Court: Indiana Appellate Court

771 N.E.2d 1230

Vicki LUZ, Appellant, v. HART SCHAFFNER & MARX, Appellee.

No. 93A02-0110-EX-645.

Court of Appeals of Indiana.

July 25, 2002.

James O. Wells, Jr., Wells Law Office, P.C., Rochester, Indiana, Attorney for Appellant.

Kevin W. Kearney, Hunt Suedhoff Kalamaros LLP, South Bend, Indiana, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

Vicki Luz appeals an award from the Indiana Worker's Compensation Board (the Board) in favor of her former employer, Hart Schaffner & Marx (Hart Schaffner). The Board denied her claim for benefits, finding that her claim was barred by the two-year statute of limitations for a claim under the Worker's Compensation Act. Luz presents the following restated issue for review: Did the Board err in determining that her Application for Adjustment of Claim was not filed within the statute of limitations and therefore, must be dismissed for lack of jurisdiction?

We affirm.

The facts most favorable to the Board's decision reveal that Luz was employed by Hart Schaffner from January 4, 1994 until she was terminated on August 27, 1997. Luz began having bilateral wrist problems in February 1995, for which she prepared a written accident report on November 27, 1995. Initially, Luz did not miss any work due to the reported injury. On November 27, 1995, the injury was deemed compensable, and the parties entered into an Agreement as to Compensation which was filed with the Worker's Compensation Board. Under the agreement, Luz received medical treatment paid for by Hart Schaffner from February 21, 1996 through and including December 11, 1997. Her initial assessment with Dr. Dion D. Chavis indicated that she had de Quervain's syndrome with overuse syndrome. Noting some improvement, Dr. Chavis discharged Luz with no permanent partial impairment on March 13, 1996. Luz returned to Dr. Chavis in July 1996 complaining of worsening symptoms. After meeting with Luz again, Dr. Chavis's diagnosis of Luz was de Quervain's syndrome with radial tunnel syndrome. On September 30, 1996, Dr. Chavis performed surgery on Luz's hand. Approximately one week prior to the operation Luz began receiving temporary total disability (TTD). Luz received TTD in the amount of $272.91 weekly from September 24, 1996 until October 2, 1996, when she returned to work. After returning to work for a period of time, Luz began experiencing difficulties again in January 1997. Because of continuing problems, Hart Schaffner referred Luz to Dr. Robert M. Baltera for further consultation on March 13, 1997. In March 1997, Luz also began treatment with her own physician, Dr. William Fish at Fulton County Medical Clinic. On August 27, 1997, Luz arrived at work wearing a wrist splint recommended by Dr. Fish. Upon seeing the wrist splint, Jim Rooney, Luz's supervisor, told Luz that if she could not do her job, he had nothing else for her to do, and she might as well go home. Shortly thereafter, Luz received notice of her termination.

Luz received unemployment compensation from September 27, 1997 through March 3, 1998. On October 22, 1998, Luz filed her Application for Adjustment of Claim for the aforementioned injury. A single hearing judge found, and the Full Worker's Compensation Board affirmed, that no fraud or coercion on the part of the employer precluded Luz from filing her application in a timely fashion. As such, her claim was barred by the two-year statute of limitations for a claim under the Worker's Compensation Act.

In 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. See Ind.Code Ann. § 22-3-4-8(b) (West 1991). We cannot disturb the Board's factual determinations unless we conclude that the evidence is undisputed and leads inescapably to a contrary result. Eastham v. Whirlpool Corp., 524 N.E.2d 23 (Ind.Ct.App. 1988), trans. denied. We disregard all evidence unfavorable to the Board's findings of fact and consider only the facts and reasonable inferences which support those findings. Id. While this court is not bound by the Board's interpretations of law, we should reverse only if the Board incorrectly interpreted the Worker's Compensation Act. See Houchins v. Kittle's Home Furnishings, 589 N.E.2d 1190 (Ind.Ct.App. 1992). We will construe the Worker's Compensation Act liberally in favor of the employee. R.L. Jeffries Trucking Co., Inc. v. Cain, 545 N.E.2d 582 (Ind.Ct.App.1989), trans. denied.

IC § 22-3-3-27(a) (West 1991) provides that the Board has continuing jurisdiction to modify or change awards. Subsection (c) provides:

The board shall not make any such modification upon its own motion nor shall any application therefore be filed by either party after the expiration of two (2) years from the last day for which compensation was paid under the original award made either by agreement or upon hearing, except that applications for increased permanent partial impairment are barred unless filed within one (1) year from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award.

Luz contends that her claim was timely filed. She argues that the two-year statute of limitations imposed by IC § 22-3-3-27 should not relate back to the last payment of TTD, but should relate to the time when the permanency of the injuries was discernible.¹ She reasons that because she was not aware of the permanence of her injury, her claim for adjustment should not be time-barred. She argues that Dr. Baltera's examination and report of March 13, 1997 is the first suggestion of the permanency of her injuries. Even then, Luz urges that Dr. Baltera's report indicates 0% permanent partial impairment rating. Luz further argues that it is not until the October 8, 1997 permanent partial disability rating of 16% of the whole person by Sagamore Rehabilitation Center² and the December 11, 1997 report by Dr. Chavis³ rendering...