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Gordon v. Toyota Motor Manufacturing of Indiana

Court of Appeals of Indiana

April 19, 2016

William Gordon, Appellant-Plaintiff,
v.
Toyota Motor Manufacturing of Indiana, Appellee-Defendant

          Appeal from the Indiana Worker's Compensation Board. Application No. C-193891.

         ATTORNEY FOR APPELLANT: Nathan B. Maudlin, Klezmer Maudlin, P.C., New Harmony, Indiana.

         ATTORNEY FOR APPELLEE: Stephen S. Lavallo, Kahn, Dees, Donovan & Kahn, LLP, Evansville, Indiana.

         Najam, Judge. Robb, J., and Crone, J., concur.

          OPINION

          Najam, Judge.

         Statement of the Case

         [¶1] William Gordon appeals the decision of the Full Worker's Compensation Board of Indiana (" the Board" ) affirming the Single Hearing Member's decision awarding Gordon compensation for temporary total disability (" TTD" ) benefits for injuries he sustained while working for Toyota Motor Manufacturing of Indiana (" Toyota" ). Gordon presents two issues for our review, which we consolidate and restate as a single issue, namely, whether the Board erred when it awarded Gordon TTD benefits for thirty weeks instead of the more than two years of benefits Gordon had sought.

         [¶2] We reverse.

         Facts and Procedural History

         [¶3] This court stated the facts and procedural history in Gordon v. Toyota Motor Manufacturing of Indiana, 985 N.E.2d 821,

Page 478

2013 WL 1442051 at *1 (Ind.Ct.App. 2013), as follows:

The facts stipulated to by the parties indicate that Gordon was employed by Toyota Motor Manufacturing of Indiana (" Toyota" ) on November 26, 2007, and earned an average weekly wage in excess of the statutory maximum. On that date, Gordon suffered an injury, affecting his left shoulder and neck, in an accident while in the course of his employment. Toyota acknowledged Gordon's accidental injury and paid for certain medical services and supplies. On July 16, 2008, a doctor furnished by Toyota, Dr. Weaver, took Gordon off work.
On July 24, 2008, Dr. Titzer, another physician furnished by Toyota, released Gordon to return to work with restrictions. Although Gordon attempted to return to work, he left his employment on August 5, 2008. Subsequently, one doctor recommended no further treatment for Gordon's neck and one doctor recommended no more treatment for Gordon's shoulder. On September 29, 2009, however, Dr. Wilson recommended additional treatment for Gordon's shoulder. On October 20, 2009, Toyota notified Gordon that it would not provide the treatment recommended by Dr. Wilson. On June 7, 2010, Dr. Miller performed surgery on Gordon's shoulder. Dr. Miller expected Gordon to return to full activity six months after the surgery and to have a full recovery without impairment. On August 11, 2008, Gordon had filed an Application for Adjustment of Claim related to his injury. Single Hearing Member Andrew S. Ward heard Gordon's claim on October 17, 2011, and on May 9, 2012, ordered Toyota to pay for certain medical treatment and to pay thirty weeks of TTD benefits. The following issues were presented for the Single Hearing Member's review: 1) whether Gordon was entitled to an award of medical services and supplies, and if so, the medical services and supplies to which he was entitled; and 2) whether Gordon was entitled to an award of TTD benefits, and if so, the period of time to which he was entitled to those benefits.
On June 5, 2012, Gordon sought review of his claim by the Board and on October 11, 2012, by a vote of 6-1, the Board adopted and affirmed the Single Hearing Member's award.

         [¶4] On appeal, we held as follows:

Here, there are no findings of the facts that underlie the Board's decision. Rather, the Board merely makes two unsupported legal conclusions; namely that Gordon was entitled to an award of statutory medical-expenses compensation and to thirty weeks of TTD benefits. From these sparse findings, we are unable to determine the Board's reasoning process. From the record presented to us, we are unable to determine whether the Board's determination is in accordance with the law or whether the determination is arbitrary or capricious. Thus, we are compelled to conclude that this matter must be vacated and remanded to the Board with instructions to issue findings of fact and conclusions thereon which comport with the Indiana Administrative Orders and Procedures Act such that we can conduct, if necessary, our appellate review of the Board's determination.

Id. at *3.

         [¶5] On remand, the Single Hearing Member issued new findings of fact and conclusions thereon. Paragraphs numbered one through twelve of the findings were identical to the Single Hearing Member's first decision, but the new decision

Page 479

included additional findings and conclusions as follows:

13. At hearing Plaintiff requested that the expenses of Drs. Franklin Wilson and Peter Millett be ordered paid by Defendant.
14. Plaintiff's counsel sent him for a consultative examination with Franklin D. Wilson, M.D. Dr. Wilson referred to the examination as an " Independent Medical Examination" which has a given meaning in the medical community as specifically not including medical care and treatment. Dr. Wilson's report was not of sufficient weight and authority as to merit an award against Defendant for its expense.
15. Plaintiff testified to a good recovery following the surgery by Dr. Millett. The Single Hearing Member is persuaded that Dr. Millett's treatment was appropriate and necessary to Plaintiff's condition. Dr. Millett's report established that approximately six (6) months after the operation he would expect Plaintiff to return to full activity. Plaintiff confirmed that was the case through his testimony.

CONCLUSIONS OF LAW

1. Given the fact that Plaintiff's treatment and surgery at the hands of Dr. Millett were necessary, appropriate, and successful, Plaintiff is entitled to an award as statutory medical for such treatment and surgery beginning April 13, 2010 and ending June 7, 2010.
2. As noted in the Findings above, Dr. Weaver took Plaintiff off work on July 16, 2008. The record specifically notes that it would be for four (4) weeks.
3. Taking the four (4) week period referenced by Dr. Weaver together with the six (6) months after Dr. Millett's successful surgery, the Single Hearing Member concludes Plaintiff is entitled to an award of thirty (30) weeks of temporary total disability.

         Appellant's App. at 8-9. The Full Board affirmed and adopted the Single Hearing Member's decision. This appeal ensued.

         Discussion and Decision

         [¶6] Gordon contends that the Board erred when it did not award him TTD benefits for the entire time of his temporary total disability, namely, from August 5, 2008, until December 7, 2010, or approximately 121 weeks. In particular, Gordon maintains that the undisputed evidence shows that, while Toyota offered him a job with restrictions following the accident, Gordon was physically unable to do that job because of his temporary total disability. Thus, Gordon asserts that his refusal ...


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