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Court upholds finding woman isn't totally disabled

March 28, 2012

Because a woman failed to seek appellate review of the decision by the Worker’s Compensation Board of Indiana that she was not permanently and totally disabled, she waived any claim of error related to that decision, the Indiana Court of Appeals has ruled.

In Janet Stewart v. Richmond Community Schools, No. 93A02-1108-EX-793, Janet Stewart, a former gym teacher, appealed the final judgment by the board that found she was not permanently and totally disabled, as a single hearing member had determined.

Stewart broke her leg while helping a student during a gymnastic maneuver. She received workers’ compensation benefits for the surgery and treatment. A year later, she fell and broke her right hip at home. She claimed the fall was caused by continuing problems with her right leg. She did not return to work.

The single hearing member determined the hip injury was related to the broken leg injury and that she was totally and permanently disabled. The board affirmed that the hip injury was a compensable claim, but reversed regarding total disability and remanded for calculation of her permanent partial impairment. Neither party appealed the board’s decision.

On remand, she argued she was permanently and totally disabled; the member concluded Stewart sustained a 39 percent permanent partial impairment. The full board affirmed this decision.

The COA determined that the full board’s original decision finding Stewart wasn’t permanently and totally disabled was a final award subject to appellate review. Since she didn’t seek appellate review then, she waived any claim of error. The judges cited Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053 (Ind. 1996), in support of their decision.

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