Legal Lines


PTD Award Reversed – Appellate Pitfall Identified

By Sharon F. Murphy, Robinson Wolenty & Young, LLP
| Date: 07/05/2013

Janet Stewart suffered an injury on December 5, 2003 while working as a PE teacher for Richmond Community Schools. Ms. Stewart was assisting a student in a gymnastic maneuver when the student fell on her causing Ms. Stewart to break her right leg. While recovering from that injury, Ms. Stewart fell again at home fracturing her right hip. Treatment for the broken leg was provided without dispute. However, treatment for the hip injury was denied by the employer as not work related. Ms. Stewart filed an Application for Adjustment of Claim with the Board seeking workers’ compensation benefits for the hip injury.

Following an evidentiary hearing, the Hearing Member found that Ms. Stewart’s hip injury was caused by the original work injury, and he awarded her Permanent Total Disability as a result of her injury. On appeal, the Full Board reversed the finding of PTD and remanded the case to the Hearing Member for a determination of Ms. Stewart’s PPI rating.

Ms. Stewart did not immediately seek an appeal to the Court of Appeals. She continued to argue that she was PTD on remand, but she stated, in the alternative, that her PPI rating was be 39% of the body. After review of the additional evidence submitted, the Hearing Member found that Ms. Stewart had suffered a 39% whole body PPI. Ms. Stewart appealed that ruling to the Full Board. The Full Board affirmed the PPI rating and Ms. Stewart then perfected her appeal to the Court of Appeals arguing that she was PTD as a result of the work injury, and the PPI awarded was inadequate to compensate her for her injuries.

In the decision rendered by the Court of Appeals, Janet Stewart v. Richmond Community Schools, 964 Ind. App. 927 (Ind. Ct. App. 2012), the court looked closely at the procedural history of the case. It relied on a prior Supreme Court’s holding in Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053 (Ind. 1996) that “an order regarding temporary total disability benefits is a final decision subject to appellate review, even though the parties’ dispute is not yet fully resolved as to all issues.” Id. At 1056-57. Based on this prior holding, the Stewart Court then found that Ms. Stewart had waived her right to claim PTD. They reasoned that a reversal of the PTD determination during the first Full Board review was “analogous to a ruling on temporary total disability” as discussed in Cox. 964 N.E.2d 930-31. Ms. Stewart’s failure to take an immediate appeal to the Court of Appeals once the PTD finding was reversed by the Full Board was, therefore, held to be a waiver of her right to appeal it later. Id.

This case should serve as a warning to future litigants. The remand of a case by the Full Board to the original Hearing Member may nevertheless start the 30 day deadline for appeal of the Full Board decision to the Court of Appeals if that remand decision impacts the award (or denial) of disability benefits to the employee.