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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.

FILED
Aug 12 2008, 9:30 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: G. TERRENCE CORIDEN Coriden Law Office, LLC Columbus, Indiana

ATTORNEYS FOR APPELLEES: SCOTT M. DILLON Scott M. Dillon, LLC Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA
SPEEDWAY INTERNATIONAL TRUCKS Appellant-Defendant, vs. CLYDE D. BAUGH Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 93A02-0712-EX-1144

APPEAL FROM THE INDIANA WORKER'S COMPENSATION BOARD Krysten Lester, Single Hearing Member Cause No. C-168937

August 12, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

On February 19, 2004, Clyde D. Baugh filed an application for adjustment of claim with the Indiana Worker's Compensation Board claiming permanent disablement from injuries suffered while working for Speedway International Trucks (Speedway). A single hearing member determined that Baugh was permanently totally disabled and that Speedway should pay permanent total disability compensation and provide full benefits under the Worker's Compensation Act. Speedway filed for review by the Full Review Board of the Indiana Worker's Compensation Board (the Full Board). After a hearing, the Full Board affirmed the single hearing member's decision, "clarifying" that Baugh is also entitled to future medical care in the form of pain management. On appeal, Speedway contends there was no finding or evidence to support the Full Board's conclusion that Baugh was entitled to future medical expenses for pain management treatment. We reverse. The facts as found by the single hearing member and adopted by the Full Board are that Baugh was injured on December 20, 2002 in an accident arising out of and in the scope of his employment with Speedway. He went to the emergency room, where he was diagnosed with wedge deformity of T12 with mild lumbar and thoracolumbar degenerative changes. Beginning December 21, 2002 and continuing through and including January 18, 2007, Baugh received Worker's Compensation temporary total disability benefit payments from Speedway in the amount of $109,109.66. We reproduce here the relevant, and unchallenged, Recitation of Evidence entered by the single hearing member relating to the course of Baugh's medical treatment:
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Plaintiff was then seen at the Methodist Occupational Health Center by Dr. Wells and Dr. Todd Rowland from December 20, 2002 through April 16, 2003. The course of treatment consisted of physical therapy and pain medications. Dr. Rowland reported that Plaintiff suffered from severe back pain and numbness in his right foot. As early as February 26, 2003 he opined that it was not clear that the Plaintiff would be able to improve. On April 16, 2003 Dr. Rowland found the Plaintiff to be at maximum medical improvement and assigned a 5% permanent partial impairment rating based on the AMA Guidelines with DRE lumbar category II. Dr. Worland also assigned permanent restrictions of lifting no more than 20 pounds, pushing and/or pulling no more than 25 pounds, and no repetitive bending and twisting or stooping. Plaintiff was thereafter seen by Dr. Marshall Poor and Dr. Souheil Haddad at the Neurosurgical Clinic of Bloomington for ongoing pain complaints. On May 15, 2003, Dr. Poor opined that Plaintiff had a compression fracture at T11 or some variant of Scheuermann's disease. Dr. Haddad recommended a T11 kyphoplasty, although he warned Plaintiff that this may not improve his symptoms. Dr. Haddad noted that Plaintiff's symptoms of pain were "very incapacitating". After the Plaintiff underwent surgery June 19, 2003 he temporarily improved, but after undergoing physical therapy he complained of a recurrence of his back pain August 13, 2003. Dr. Haddad opined that Plaintiff reached maximum medical improvement September 19, 2003 and released him to return to work. He assigned restrictions of no repetitive bending, twisting, or reaching up and recommended that Plaintiff be able to stand up and walk around, rest, and sit down fairly frequently. Thereafter, Plaintiff continued to follow up with his family physician, Dr. James Ray who referred him to the Bloomington Hospital and Health Care Systems Advanced Pain Center. Plaintiff treated at the Pain Center with Dr. Lysandrou who reported that Plaintiff had tried muscle relaxants, analgesics, antiinflammatories, physical therapy, and bed rest for six weeks but continued to have constant pain that was worse with movement, coughing, sneezing, straining, bending, prolonged walking, prolonged
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sitting, and prolonged standing. Dr. Lysandrou administered several epidural steroid injections at the T11-T12 level through June 29, 2004. 11. Plaintiff followed up with Dr. Haddad on July 7, 2004 who then referred him to Dr. Tiwari, at the Pain Management Center in Bloomington. Dr. Tiwari diagnosed Plaintiff with peripheral neuropathy and thoracic facet hypertrophy and thoracic facet pain. Dr. Tiwari recommended thoracic facet injections and concluded that Plaintiff would require chronic pain management, physical therapy, and medications to control his pain as well as comorbidities associated with chronic pain. Plaintiff was approved for Social Security Disability September 17, 2004. On September 14, 2004 Dr. Tiwari reported to defendant that Plaintiff was clinically unable to work due to his pain. On April 29, 2005 Dr. Tiwari prescribed an intrathecal pump for the purpose of administering morphine which was inserted by Dr. Haddad May 9, 2005. On May 3, 2006 Dr. Tiwari assigned a permanent partial impairment rating of 35% of the whole person. Dr. Tiwari continues to see Plaintiff for pain management. Plaintiff underwent his first functional capacity evaluation ("FCE") October 31, 2005 and November 2, 2005. The evaluator noted that Plaintiff's functional limitations observed were consistent with his physical impairments and diagnosis. The evaluator opined that Plaintiff's abilities approximated the strength demand for sedentary work except when lifting from floor to waist. On December 19, 2005 Constance Brown, MS, PC issued a vocational report based on her interview with the Plaintiff and a records review. Her conclusion was that Plaintiff could not return to his past work as a mechanic and that he did not have skills that were transferable to work within his documented functional limitations. In a follow up report March 7, 2007, Ms. Brown opined that Plaintiff's restrictions would put him at a sedentary, unskilled level that compromises [sic] less than 1% of the Indiana labor market. Additionally, Ms. Brown opined that Plaintiff's use of narcotic medication on a consistent basis would limit his access to the labor market.
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On December 15, 2006, Gail Corn, MS, CRC, issued a vocational report based on her interview with the Plaintiff, a records review, and a labor market survey. Ms. Corn listed 11 job categories in Plaintiff's area in the sedentary, exertional level which she opined are with Plaintiff's restrictions, including factory assembler, electronic component assembler, and security guard. On March 26, 2007 plaintiff underwent a final FCE which concluded that Plaintiff was unable to return to his previous job as a mechanic. Defendant very recently arranged for Plaintiff to see Dr. Ronald Bennett for a second opinion. Dr. Bennett issued his report May 8, 2007 which assigned a 28% whole person impairment.

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Appellant's Appendix at 65-67. Based upon the foregoing, the single hearing member entered the following award on July 6, 2007: IT IS HEREBY ORDERED ADJUDGED AND DECREED THAT Plaintiff is Permanently and Totally Disabled due to an accident that arose out of and in the course of his employment on December 20, 2002 and is entitled to maximum compensation and benefits under the Indiana Worker's Compensation Act, including, but not limited to, five hundred (500) weeks of compensation at a rate of $512.94 per week with a credit to Defendant for amounts previously paid to Plaintiff for Temporary Total Disability.
Id. at 68-69.

On July 23, 2007, Speedway filed an Application for Review by Full Board. Following a hearing, the Full Board issued the following decision: IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Worker's Compensation Board of Indiana that the Single Hearing Member's decision is hereby affirmed with the following clarifications. The Full Worker's Compensation Board now finds that Plaintiff is entitled to future medical care in the form of pain management to reduce and/or limit his impairment. This includes but is not limited to care needed to maintain Plaintiff's intrathecal pump. Id. at 71 (emphasis supplied). Speedway contends the highlighted portion of the above order
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is erroneous. Our standard of review in cases such as this is well settled. "`On appeal, we review the decision of the Board, not to reweigh the evidence or judge the credibility of witnesses, but only to determine whether substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board's findings and conclusions.'" Bertoch v. NBD Corp., 813 N.E.2d 1159, 1160 (Ind. 2004) (quoting Walker v. State, 694 N.E.2d 258, 266 (Ind. 1998)). The Full Board's conclusions of law are reviewed de novo. Id. Here, the single hearing member entered written findings and the Full Board found that the hearing officer's decision should be adopted, although with "clarifications". "Such adoption is sufficient to attribute to the [F]ull [B]oard the explicit written findings of the single hearing member and to permit appellate review accordingly." Dial X-Automated Equip. v. Caskey, 826 N.E.2d 642, 644 (Ind. 2005). Speedway's challenge to the Full Board's decision centers upon a single aspect of the order

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