Moore v. Terrell
| Decision Date | 07 February 2014 |
| Docket Number | No. 93A02-1308-EX-00693,93A02-1308-EX-00693 |
| Court | Indiana Appellate Court |
| Parties | PATSY MOORE, d/b/a CAT DOG TRUCKING Appellant, v. ROGER TERRELL, Appellee. |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT:
CARLA R. HOUNSHEL
R. JAY TAYLOR, JR.
GERALD H. MCGLONE
Terre Haute, Indiana
APPEAL FROM THE INDIANA WORKER'S COMPENSATION BOARD
The Honorable Linda Hamilton, Chairwoman
Case No. C-187635
MEMORANDUM DECISION - NOT FOR PUBLICATIONMATHIAS, Judge Cat Dog Trucking ("Cat Dog") appeals an order of the Worker's Compensation Board ("the Board") awarding benefits to former Cat Dog employee Roger Jerrell ("Terrell") for injuries he suffered during an accident on the job. Cat Dog presents three issues on appeal, which we restate as:
I. Whether the Board erred in awarding permanent partial impairment ("PPI") benefits to Jerrell payable over a period of 500 weeks;
II. Whether the Board erred in failing to credit Cat Dog for all of the temporary total disability ("TTD") benefits Cat Dog paid to Jerrell; and
III. Whether the Board erred in failing to credit Cat Dog for home healthcare services it claims that it provided to Jerrell.
We affirm.
Facts and Procedural History
Jerrell is a former employee of Cat Dog, a trucking company. On December 8, 2006, Jerrell was at work when his clothes caught fire, causing him to suffer burns to 51% of his body. As a result of the burns, one of Jerrell's legs was amputated above the knee, and the other leg was amputated below the knee. His left hand, which was previously his dominant hand, was seriously impaired by the burns, as was his left arm. He has no prostheses and uses a motorized wheelchair. Jerrell cannot walk, lift his arms above his head, grip with his left hand, cook, clean, do laundry, or dress himself without assistance.
Cat Dog began making TTD payments of $166.75 per week to Jerrell on the date of his injury, December 8, 2006, and continued making these payments until approximately July 17, 2013. Although Cat Dog did not disagree that Jerrell waspermanently and totally disabled as a result of his injuries, eventually, a dispute arose between the parties as to the nature and scope of the relief to which Jerrell was entitled. On July 20, 2007, Jerrell filed an application of adjustment of claim with the Board.
On November 21, 2007, Jerrell's condition became permanent and quiescent, and he was moved to a nursing home. According to the Board's findings of facts, roughly 18 month later, on May 7, 2009, Jerrell moved into a rented home in Linton, Indiana to live with his mother, Alice Zimmerman ("Zimmerman").1 From the time Jerrell moved in with his mother until December 10, 2010, Cat Dog paid Jerrell $160.00 every two weeks so that Jerrell could compensate his mother for two hours of care, four days per week, at a rate of $10.00 per hour. During this time, Zimmerman provided all of the fifty-six hours per week of home health care recommended by two of Jerrell's physicians, Dr. Esguerra and Dr. Dietzen.
On December 10, 2010, Cat Dog stopped paying for care provided by Zimmerman and began instead to provide care directly through an outside agency. The aides employed by the agency cared for Jerrell for two hours per day, seven days per week. Any additional care was provided by Zimmerman without compensation.2
On November 14, 2011, the Board's single hearing member held a hearing regarding benefits due to Jerrell, then continued the matter for further briefing on the issue of Jerrell's PPI award. On January 19, 2012, the hearing member issued its findings of fact and conclusions of law, concluding that Jerrell's PPI award was valued at$250,000. The hearing member heard the remaining issues on March 19, 2012. On November 1, 2012, the hearing member entered an order, which found, among other things, that Jerrell moved into his mother's house on May 7, 2009 and which concluded, in relevant part, that:
2. Plaintiff is entitled to an Award beginning May 7, 2009 for up to fifty-six (56) hours per week of home healthcare at the expense of Defendant as a statutory medical expense.
3. For the period beginning May 7, 2009 to December 10, 2010, Plaintiff is entitled to a payment for amounts owed his mother at the rate of Ten
Dollars ($10.00) per hour as a statutory medical expense.
* * *
7. Defendant is entitled to a credit against the permanent partial impairment value for all compensation paid to Plaintiff after November 21, 2007.
Two weeks after the issuance of the hearing member's order, on November 15, 2012, Cat Dog began providing fifty-six hours of care per week to Jerrell. On November 28, 2012, Cat Dog sought the full Board's review. A hearing was held by the full Board on May 13 2013. On July 17, 2013, the full Board issued its findings of fact and conclusions of law, affirming the single hearing member's decision, adopting its conclusions regarding the home healthcare service awards to Jerrell, and further providing that:
Appellee's App. pp. 19-21. Cat Dog now appeals.
Discussion and Decision
Cat Dog challenges the nature and scope of the Board's award of benefits to Jerrell, and as such, confronts a stringent standard of review. When we review a decision of the full Worker's Compensation Board, we are bound by the factual determinations ofthe Board and may only consider errors in the Board's conclusions. Obetkovski v. Inland Steel Indus., 911 N.E.2d 1257, 1260 (Ind. Ct. App. 2009), trans. denied. We apply a two-tiered standard of review. Ag One Co-op v. Scott, 914 N.E.2d 860, 862 (Ind. Ct. App. 2009). First, we review the record to determine whether there is competent evidence of probative value to support the Board's findings. Next, we determine whether the Board's findings support the decision. Id. at 863.
We will not disturb the Board's findings of fact unless the evidence is undisputed and leads inescapably to a contradictory result. Id. Therefore, on review of the Board's findings of fact, we must consider only the evidence and reasonable inferences drawn therefrom that support the Board's findings. Id. We do not reweigh the evidence or assess the credibility of the witnesses. Id. Importantly for this case, while we are not bound by the Board's legal conclusions, we will disturb the Board's conclusions only if it incorrectly interpreted the Worker's Compensation Act. Id.
I. PPI Award Paid Over 500 Weeks
Cat Dog first argues that the Board's order paying Jerrell's PPI award over a period of 500 weeks was erroneous. Cat Dog asserts that Jerrell was entitled to the greater of "the amount payable for impairment or five hundred (500) weeks of compensation" and that, since Jerrell elected to receive PPI benefits instead of PTD benefits, he could not receive his benefits over a period of 500 weeks. Appellant's Br. at 5. Cat Dog claims that "the Act specifically imposes a 500-week payment period, but only for permanent disability awards, not for PPI awards like Jerrell's" and that "[t]he 500-week compensation cap set out in Ind. Code § 22-3-3-10(i)(l1) expressly appliesonly to PTD awards." Appellant's Br. at 7-8. Cat Dog argues that section 22-3-3-10(i)(11) requires that Jerrell's PPI benefits be paid weekly, at sixty-six and two-thirds percent of Jerrell's average weekly wage.3
The issue of whether the Board erred in the manner in which it made its award to Jerrell is one of law for this court to decide. In so doing, we look to the Worker's Compensation Act, its underlying purposes and the intent of our General Assembly. We will reverse the Board only if it incorrectly interpreted the Act. Id. Simply said, the Board's ...
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