COA affirms finding injured employee had a change of condition

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The Indiana Worker’s Compensation Board did not err when it ruled in favor of an injured employee of an Evansville media company, the Indiana Court of Appeals decided Wednesday, as the medical opinion offered by the employee was not contrary to a settlement agreement.

In Evansville Courier Company v. Mary Beth Uziekalla, 93A02-1703-EX-464, Mary Beth Uziekalla injured her neck while lifting newspapers for the Evansville Courier Co. in 2008. After being treated by Dr. David Weaver, a neurosurgeon, and receiving an independent medical examination from Dr. Robert Vraney, an orthopedic surgeon, Uziekalla settled a workers’ compensation claim in 2011.

As part of the settlement, Uziekalla received lump-sum payments for her permanent partial impairment as rated by Weaver, temporary total disability and attorney fees. In exchange, Uziekalla agreed to dismiss her claim and waive further physician review.

However, the agreement did allow Uziekalla to bring a claim for change of condition, at which point she could seek a medical opinion from Vraney. However, if either party objected to Vraney conducting the review, then they could agree on another doctor or allow the board to choose the physician who could render the opinion.

Uziekalla exercised that provision in May 2015, but Vraney declined to give a medical opinion, so the parties agreed on Dr. Michael Doyle, a neurosurgeon. Doyle determined that Uziekalla’s claimed change in condition did not result from her 2008 work injury, but Weaver, who also examined her, came to the opposite conclusion.

Then, at a hearing before a single member of the Indiana Worker’s Compensation Board, Evansville Courier argued Uziekalla should have been bound by the terms of the agreement and should be required to rely on Doyle’s opinion, not Weaver’s. The hearing member ruled for Uziekalla, finding Weaver’s opinion was more persuasive than Doyle’s.

Further, the hearing member adopted the parties’ stipulations of fact in full, including Stipulation 5, which read that, among other things, “the approved settlement agreement contained a procedure for resolving future change of condition claims.” The full board agreed, and Evansville Courier appealed, arguing first that the board committed reversible error by accepting Stipulation 5 but declining to give Doyle’s opinion conclusive effect.

But in a Tuesday opinion, Indiana Court of Appeals Judge Paul Mathias disagreed and noted that the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure.

“Indeed, the use of the indefinite article contemplates the contrary: that the doctor-selection provision is one procedure among several, or one component of a larger procedure,” Mathias wrote. “…The agreement does not so much as hint at the notion that the opinion of the doctor will be the only opinion considered, will be conclusive and dispositive of Uziekalla’s claim, or will have any effect whatsoever on the proceedings.”

Further, the appellate court rejected the argument that the board erred in admitting Weaver’s opinion because it was not based on reliable scientific principles. Evansville Courier waived such an argument by failing to contemporaneously object to the admission of the evidence, Mathias said.

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