Court of Appeals of Indiana | Opinion 93A02-1609-EX-2228| March 30, 2017 Page 1 of 19

ATTORNEY FOR APPELLANT

Carol Modesitt Wyatt

Dugan & Voland, LLC

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Charles S. Hewins

Hewins Law Firm

Evansville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Masterbrand Cabinets,

Appellant,

v.

Douglas Waid,

Appellee.

March 30, 2017

Court of Appeals Case No.

93A02-1609-EX-2228

Appeal from the Worker’s 

Compensation Board of Indiana

The Honorable Linda Peterson 

Hamilton, Chairman

Application No. C-227286

Barnes, Judge.

Case Summary

[1] Masterbrand Cabinets (“Masterbrand”) appeals a decision of the Indiana 

Worker’s Compensation Board (“Board”) awarding temporary total disability

benefits to Douglas Waid. We affirm.
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Issue

[2] Masterbrand raises one issue, which we restate as whether the Board properly 

awarded temporary total disability (“TTD”) benefits to Waid following an onthe-job injury and a termination from his job for misconduct.

Facts

[3] Masterbrand hired Waid in June 2013 as a production associate, which 

involved doing physical labor. During his employment Waid was “coached”

for his workplace conduct on several occasions regarding anger issues. Tr. p. 

49. On June 6, 2014, Waid slipped while working and injured his lower back. 

Waid promptly notified his supervisor of the injury, but he initially thought that 

medical care would be unnecessary. However, Waid’s pain got worse, and 

Masterbrand eventually referred him to Dr. James Butler. Waid saw Dr. Butler 

on June 24, 2014, complaining of shooting pains in his back and pains down 

into his leg. Dr. Butler determined that, “to make an absolute causation 

determination,” he needed medical records related to Waid’s prior back 

problems. Ex. p. 7. Dr. Butler returned Waid to “full duty.” Id. Waid 

disagreed with the full duty recommendation, but he did try to return to work. 

After working a full shift, he was unable to get out of bed the next day. On 

June 26, 2014, he returned to work. Waid got into a verbal altercation with his 

supervisor regarding his back pain and his lack of work restrictions. He threw 

his ice pack, nearly striking another employee, and cursed at his supervisor. 

Masterbrand suspended Waid and terminated his employment effective July 2, 

2014. 
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[4] Waid returned to Dr. Butler on July 1, 2014, and Dr. Butler placed Waid on 

restrictions of “max lifting of 20 lbs and change position as often as needed.” 

Id. at 12. On July 28, 2014, Waid had another appointment with Dr. Butler. 

Waid continued to complain of severe pain, and Dr. Butler ordered physical 

therapy but removed the work restrictions. On September 29, 2014, Dr. Butler 

released Waid from treatment, found maximum medical improvement 

(“MMI”), and assigned a three percent whole-person impairment rating.

[5] In October 2014, Waid filed a motion to compel an independent medical 

examination (“IME”) by an orthopedic surgeon or a neurosurgeon. After a 

hearing, the Single Hearing Member found:

2. Plaintiff immediately reported the injury to his 

employer.

3. Plaintiff initially told his employer that he felt he would 

be okay and advised that he did have prior back 

problems.

4. Over the ensuing weekend the condition became worse 

and worse.

5. Plaintiff reported the increase in symptoms to his 

employer but there was no immediate follow up.

6. Plaintiff was finally seen for medical examination on 

June 24, 2014 by James Butler, M.D. Dr. Butler 

seemed to be more focused on making a causation 

determination than active treatment. Dr. Butler 
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declined to place any work restriction in spite of 

Plaintiff’s ongoing complaints of pain and limitations.

7. With respect to Plaintiff’s medical history with his 

back, he advised Defendant and freely admitted in 

testimony to his past history. He established through 

the evidence, however, that by June 6, 2014 he was 

unrestricted in his physical abilities and doing his full 

function for Defendant.

8. Plaintiff was continuing to have difficulty doing fullduty, as Dr. Butler advised Defendant Plaintiff could so 

perform, and was upset about the impact the full-duty 

work was having on his back pain.

9. One of Defendant’s representatives advised Plaintiff 

that either he could do the job or they would get 

someone who would. Plaintiff was terminated shortly 

thereafter. 

10. Plaintiff saw Dr. Butler on July 1, 2014 and, after 

Plaintiff advised Dr. Butler that Defendant had 

terminated him, Dr. Butler only then imposed a twenty 

(20) pound weight restriction.

11. After receiving a new MRI and comparing it with a 

prior one, even though Plaintiff continued to have 

sharp pain in his back and in his leg, which Plaintiff 

describes as almost unbearable, Dr. Butler released 

Plaintiff at maximum medical improvement.

12. The Single Hearing Member finds that the appointment 

of an independent medical examiner pursuant to 
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Indiana Code 22-3-4-11 is appropriate in the 

circumstances.

13. This matter is therefore referred to the Ombudsman 

Division of the Worker’s Compensation Board for the 

appointment of an independent medical examiner at 

the expense of Defendant as a statutory medical 

expense.

Appellee’s App. Vol. II pp. 6-7. Dr. Mike Chou examined Waid on August 26, 

2015. Dr. Chou found that Waid probably had an exacerbation of a preexisting back condition and that “perhaps 10-20%” was attributed to the job 

injury. Appellant’s App. Vol. II p. 52. He diagnosed Waid with “bilateral L5 

radiculopathy secondary to protruding intervertebral disc at L4-5.” Id. Dr. 

Chou stated that Waid “should be able to return to work at sedentary duty” but 

that continued symptoms might require surgery. Id. Further, Dr. Chou stated 

that Waid would “reach his point of maximum medical improvement either 

after this episode of pain resolves without surgery, or if not, then the patient will 

reach it after surgery and recovering from that.” Id. 

[6] After another hearing, the Single Hearing Member issued findings of fact and 

conclusions of law as follows:

1. Defendant introduced evidence designed to 

demonstrate that Plaintiff was terminated for just cause 

and that Plaintiff’s conduct fell well below the standard 

reasonably expected of an employee in relation to his 

employer and its representatives.
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2. In the context of determining an injured worker’s 

entitlement to temporary total disability or temporary 

partial disability benefits, the Board is not required (nor 

is it empowered) to make determinations of the justness 

of the termination or the level of misconduct of the 

injured worker.

3. Instead, the Board must merely determine whether the 

injuries sustained at work produced an inability, total 

or partial, to work.

4. Unquestionably Plaintiff has an inability to perform 

work of the same kind or character as he was 

performing when injured.

5. It was Plaintiff’s staunch belief that he was limited in 

his ability to work that resulted in the confrontation 

which ultimately led to his termination.

6. Plaintiff was correct and the medical records 

demonstrate that Plaintiff retains only a very limited 

capacity to work at this point; he has been released to 

perform work of a sedentary nature.

7. Plaintiff has been so limited since the date of his injury 

and that limitation continued through the date of 

hearing on this issue.

8. Plaintiff is entitled to an award for his temporary total 

disability from June 27, 2014 through the date of 

hearing and continuing until terminated in accordance 

with the Act and/or when ordered by the Board.

Appellant’s App. Vol. II p. 10. 
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[7] Masterbrand appealed the Single Hearing Member’s decision to the Full Board. 

Masterbrand argued in part that Waid was not entitled to TTD benefits because 

he had been terminated for misconduct. The Full Board affirmed the award 

and modified the findings of fact and conclusions of law as follows:

1. Defendant introduced evidence designed to 

demonstrate that Plaintiff was terminated for just cause 

and that Plaintiff’s conduct fell below the standard 

reasonably expected of an employee in relation to his 

employer and its representatives.

2. Unquestionably Plaintiff has an inability to perform 

work of the same kind or character as he was 

performing when injured.

3. It was Plaintiff’s staunch belief that he was limited in 

his ability to work and that the doctor showed evidence 

bias that resulted in the confrontation that ultimately 

led to his termination.

4. Plaintiff is found to be credible.

5. Furthermore, Plaintiff’s inability to work was related to 

his work injury in question.

6. Plaintiff was correct and the medical records 

demonstrate that Plaintiff retains only a very limited 

capacity to work at this point; he has been released to 

perform work of a sedentary nature.
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7. Plaintiff has been so limited since the date of his injury 

and that limitation continued through the date of 

hearing on this issue.

8. Plaintiff is entitled to an award for his temporary total 

disability from June 27, 2014 through the date of 

hearing and continuing until terminated in accordance 

with the Act and/or when ordered by the Board.

Appellant’s App. Vol. II p. 6. Masterbrand now appeals.

Analysis

[8] Masterbrand challenges the Board’s award of TTD benefits to Waid. Our 

supreme court has held that the Worker’s Compensation Act is to be liberally 

construed to “‘effectuate the humane purposes of the Act.’” Daugherty v. Indus. 

Contracting & Erecting, 802 N.E.2d 912, 919 (Ind. 2004) (quoting Talas v. Correct 

Piping Co., Inc., 435 N.E.2d 22, 28 (Ind. 1982)). “‘[D]oubts in the application of 

terms are to be resolved in favor of the employee, for the passage of the Act was 

designed to shift the economic burden of a work-related injury from the injured 

employee to the industry and, ultimately, to the consuming public.’” Id.

(quoting Talas, 435 N.E.2d at 28). 

[9] In reviewing a worker’s compensation decision, we are bound by the factual 

determinations of the Board, and we may not disturb them unless the evidence 

is undisputed and leads inescapably to a contrary conclusion. Christopher R. 

Brown, D.D.S., Inc. v. Decatur Cty. Mem’l Hosp., 892 N.E.2d 642, 646 (Ind. 2008). 

We examine the record only to determine whether substantial evidence and 
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reasonable inferences support the Board’s findings and conclusions. Id. We 

neither reweigh the evidence nor judge the credibility of the witnesses. Conway 

ex rel. Conway v. Sch. City of E. Chicago, 734 N.E.2d 594, 597 (Ind. Ct. App. 

2000), trans. denied. As to the Board’s interpretation of the law, we employ a 

deferential standard of review to the interpretation of a statute by an 

administrative agency charged with its enforcement in light of its expertise in 

the given area. Christopher R. Brown, D.D.S., 892 N.E.2d at 646. We will 

reverse the Board only if it incorrectly interpreted the Worker’s Compensation 

Act. Id. 

[10] Masterbrand argues that Waid is not entitled to TTD benefits because he was 

terminated for misconduct. Masterbrand contends that the Act allows the 

termination of TTD benefits when an employee is unable or unavailable to 

work for reasons unrelated to the work injury. See Ind. Code § 22-3-3-7(c). 

According to Masterbrand, Waid’s “loss of earning power resulted from his loss 

of temper and his aggression” rather than his injury. Appellant’s Br. p. 15. 

Masterbrand advocates that we adopt a two-part analysis to determine whether 

an employee is entitled to TTD benefits after termination. Under 

Masterbrand’s approach, “an employee is not entitled to TTD benefits when 

terminated for cause, unless the work-related injury is the employee’s sole 

inability to find or maintain employment.” Id. at 19. Alternatively, 

Masterbrand argues that Waid was only entitled to TTD benefits for a portion 

of the time period ordered by the Board.
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[11] The Defense Trial Counsel of Indiana filed an amicus curiae brief in support of 

Masterbrand. Defense Trial Counsel advocated the following resolution:

Whether an employee quits their employment or is terminated is 

irrelevant to the inquiry as to whether the employee is entitled to 

benefits. The language of I.C. § 22-3-3-7(c) does not distinguish 

between terminated employees and those who quit their 

employment. Rather, the unambiguous language of the Act only 

requires a finding of whether an employee is “unable or 

unavailable to work for reasons other than the work injury” to 

avoid payment of benefits. If an employee can show that he/she 

is completely unable to work because of their work injury, even 

after a justifiable termination, then the employee would be 

entitled to recovery of benefits because the inability to work is 

now directly related to the work injury. However, once the 

employee is released to even sedentary work, like the employee 

in Borgman [v. Sugar Creek Animal Hospital, 782 N.E.2d 993 (Ind. 

Ct. App. 2002)], the employee is no longer entitled to benefits 

because the inability to work is no longer related to the work 

injury, rather it was caused by the employee’s resignation or 

violation of company policies. To hold otherwise would tie an 

employer’s hands and force them to retain misbehaving 

employees only because they sustained a work injury which puts 

all employees at a safety risk. See Calvert v. General Motors Corp., 

Buick Motor Division, 327 N.W.2d 542 (Mich. Ct. App. 1982) 

(holding employee who brought concealed weapon to work was 

terminated for cause therefore the employee was not entitled to 

disability benefits). Further, it would force employers to treat 

injured and non-injured workers differently exposing employers 

to added litigation for its disparate treatment of employees.

Amicus Curiae Br. of Defense Trial Counsel of Indiana pp. 11-12.

[12] On the other hand, Waid argues that he was entitled to benefits pursuant to 

Indiana Code Section 22-3-3-7(a) because he did not have the ability to return 
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to work of the same kind or character. Waid contends that Masterbrand is 

improperly disputing factual findings of the Board. He argues that the Board’s 

factual findings are fully supported by the record and cannot be reversed on 

appeal. Finally, he argues that the situation is adequately addressed by Indiana 

statutes, and it is unnecessary to look to other states or create a new test.

[13] The Indiana Trial Lawyers Association filed an amicus curiae brief in support 

of Waid. The Trial Lawyers Association contends that Masterbrand is 

requesting this court to “re-weigh the evidence and adopt a two-part analysis 

that has never been applied in the history of the Board or by an appellate court 

in Indiana.” Amicus Curiae Br. of Indiana Trial Lawyers Association p. 5. 

The Trial Lawyers Association notes that Masterbrand’s argument would set a 

bad precedent because “potentially any time an employee disagrees with his 

employer over temporary total disability . . . or any other issue surrounding his 

workers compensation claim, the employer could terminate him claiming 

employee insubordination,” and it would encourage employers to create 

conflict “in an effort to find a reason to terminate an employee and avoid 

paying wage benefits under the Act.” Id. at 7. 

[14] This matter requires us to interpret the Indiana Worker’s Compensation Act. 

The primary goal in statutory construction is to determine, give effect to, and 

implement the intent of the legislature. State v. Dugan, 793 N.E.2d 1034, 1036 

(Ind. 2003). The best evidence of legislative intent is the language of the statute 

itself, and all words must be given their plain and ordinary meaning unless 

otherwise indicated by the statute. Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind. 
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2001). It is just as important to recognize what the statute does not say as it is 

to recognize what it does say. Dugan, 793 N.E.2d at 1036. 

[15] Indiana Code Section 22-3-2-2(a) requires that “[e]very employer and every 

employee, except as stated in IC 22-3-2 through IC 22-3-6, shall comply with 

the provisions of IC 22-3-2 through IC 22-3-6 respectively to pay and accept 

compensation for personal injury or death by accident arising out of and in the 

course of the employment, and shall be bound thereby.” Further, under 

Indiana Code Section 22-3-3-7(a), “[c]ompensation shall be allowed on account 

of injuries producing only temporary total disability to work or temporary 

partial disability to work . . . .” 

[16] “The purpose of awarding temporary total disability payments under the 

Indiana Worker’s Compensation Act is to compensate an employee for a loss of 

earning power because of an accidental injury arising out of, and in the course 

of, his or her employment.” Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 

1233, 1239 (Ind. Ct. App. 2003). “If the injured worker does not have the 

ability to return to work of the same kind or character during the treatment 

period for the injury, the worker is temporarily totally disabled and may be 

entitled to benefits.” Id. “Once the injury has reached a permanent and 

quiescent state, however, the treatment period ends, and the extent of the 

permanent injury is assessed for compensation purposes.” Id. “Thus, once the 

injury has stabilized to a permanent and quiescent state, temporary disability 

ceases, and the extent of permanent injury resulting in a degree of impairment 

or total disability is determined.” Id. 
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[17] Here, there is no dispute that Waid was injured in the course of his employment 

at Masterbrand. However, Masterbrand argues that Waid was not entitled to 

TTD benefits because he was terminated for misconduct. In support of its 

argument, Masterbrand relies in part on Indiana Code Section 22-3-3-7(c), 

which provides:

Once begun, temporary total disability benefits may not be 

terminated by the employer unless:

(1) the employee has returned to any employment;

(2) the employee has died;

(3) the employee has refused to undergo a medical 

examination under section 6 of this chapter or has 

refused to accept suitable employment under section 11 

of this chapter;

(4) the employee has received five hundred (500) weeks of 

temporary total disability benefits or has been paid the 

maximum compensation allowed under section 22 of 

this chapter; or

(5) the employee is unable or unavailable to work for 

reasons unrelated to the compensable injury.

According to Masterbrand, Waid’s termination was the reason for his inability 

to work, not Waid’s injury. See Ind. Code § 22-3-3-7(c)(5). Waid properly 

points out that this statute is not technically applicable to this case. The statute 
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applies to the termination of TTD benefits. Waid’s appeal concerns his 

entitlement to benefits, not the termination of benefits. 

[18] The parties rely heavily on Borgman v. Sugar Creek Animal Hospital, 782 N.E.2d 

993 (Ind. Ct. App. 2002), trans. denied, and E.F.P. Corp. v. Pendill, 413 N.E.2d 

279 (Ind. Ct. App. 1980). In Borgman, the employee was injured during a fall at 

work, and seven months later she voluntarily terminated her employment based 

on personal difficulties with a co-worker. A month later, she sought treatment

for injuries that she claimed were related to her fall. The employee’s claim was 

denied, and the Board found, in part, that the employee was entitled to TTD 

benefits for only a six-week period beginning when she left her employment and 

ending when a physician released her to return to sedentary work. 

[19] On appeal, the employee argued that she was entitled to TTD benefits in 

addition to the six-week period. We held that the evidence was sufficient to 

support the employee’s TTD benefits for the six-week period. Notwithstanding 

that determination, we also held:

Borgman asserts entitlement to temporary partial disability 

benefits (TPD) because Sugar Creek did not offer her any work in 

accordance with her ability to perform sedentary work. 

Borgman, however, did not preserve the issue of her entitlement 

for such benefits at the May 16, 2000 hearing. Also, because 

Borgman voluntarily terminated her employment with Sugar 

Creek due to reasons unrelated to her work injury, Sugar Creek 

did not have a duty to offer her work according to medical 

restrictions or to remit any TPD benefits to her. Thus, the Board 

properly determined that Borgman was unavailable for work for 

reasons that were not related to her work injury. Indiana Code 
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section 22-3-3-7(c)(5), which provides that TTD benefits “may 

not be terminated by the employer unless the employee is unable 

or unavailable to work for reasons unrelated to the compensable 

injury,” commands such a result in this instance. It is thus 

apparent that the Board concluded that Borgman failed to meet 

her burden of proof that she was entitled to disability benefits for 

the full period of February 16, 1996, to November 24, 1997, and 

that conclusion is supported by the evidence.

Borgman, 782 N.E.2d at 997. We affirmed the Board’s decision. Consequently, 

pursuant to the Board’s decision, the employee received benefits for only the 

six-week period.

[20] Masterbrand asserts that Borgman stands for the proposition that “an 

employee’s voluntary resignation from employment, even though restricted 

from full duty work as a result of the work injury, renders the employee unable 

or unavailable to work for reasons unrelated to the work injury and, therefore 

ineligible for receipt of TTD benefits.” Appellant’s Br. p. 14. We conclude that 

Masterbrand is reading too much into Borgman. The employee in Borgman in 

fact did receive benefits for six weeks after she terminated her employment, and 

we affirmed that decision. The denial of her benefits related to the time period 

after that initial six weeks. As a result, we cannot say that Borgman bars an 

employee who has been voluntarily or involuntarily terminated from later 

receiving TTD benefits. 

[21] In E.F.P. Corp., the employee was injured during his employment and started 

receiving TTD benefits. After being released by the doctor and returning to 

work, the employee was fired “for reasons unrelated to his injury.” E.F.P. 
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Corp., 413 N.E.2d at 280. Later, a neurologist determined that the employee 

was unable to work due to the injury. The issue was whether the employee was 

“entitled to receive benefits from the date when his injury recurred despite the 

fact he was no longer employed by E.F.P.” Id. The Board granted TTD 

benefits to the employee, and we affirmed. We “found no restrictive language 

which limits recovery of total temporary disability payments to situations where 

the injured employee remains with his original employer.” Id. We held that 

the employer was ignoring “the fact that [the employee’s] continuing 

unemployment is not due to his termination, but rather due to the injury he 

sustained while in their employment.” Id. at 281. 

[22] Even if Indiana Code Section 22-3-3-7(c) applied here, based on E.F.P., the 

statute would not result in the denial of Waid’s benefits. The statute allows the 

termination of benefits where the employee is unable or unavailable to work for 

reasons unrelated to the injury. The statute does not require the work to be for 

the same employer as when the employee was injured. Although Waid was 

terminated from his employment at Masterbrand, the relevant inquiry is 

whether his inability to work, even for other employers, was related to his 

injury. The Board here found that Waid’s inability to work was related to his 

injury. That decision rested on a determination of Waid’s credibility and 

weighing of the evidence. On appeal, we cannot reweigh the evidence or judge 

the credibility of the witnesses. Conway, 734 N.E.2d at 597.

[23] In fact, the worker’s compensation statutes do not directly address the situation 

here. The General Assembly has shown that it is capable of limiting or barring 
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an employee’s claim to worker’s compensation benefits. For example, Indiana 

Code Section 22-3-2-8 provides:

No compensation is allowed for an injury or death due to the 

employee’s knowingly self-inflicted injury, his intoxication, his 

commission of an offense, his knowing failure to use a safety 

appliance, his knowing failure to obey a reasonable written or 

printed rule of the employer which has been posted in a 

conspicuous position in the place of work, or his knowing failure 

to perform any statutory duty.

Further, Indiana Code Section 22-3-3-11(a) provides: “If an injured employee, 

only partially disabled, refuses employment suitable to his capacity procured for 

him, he shall not be entitled to any compensation at any time during the 

continuance of such refusal unless in the opinion of the worker’s compensation 

board such refusal was justifiable.” The statutes, however, provide no direct 

bar to the claim of an employee who has been terminated prior to the start of 

TTD benefits. The statutes also provide no support for the new tests advocated 

by Masterbrand and Amicus Curiae Defense Trial Counsel of Indiana. Further, 

any doubts in the application of the worker’s compensation statutes must be 

resolved in favor of the employee. Daugherty, 802 N.E.2d at 919. We conclude 

that Waid’s termination for misconduct does not prevent him from receiving 

TTD benefits as a result of his on-the-job injury.

[24] The basic question here is whether Waid had “the ability to return to work of 

the same kind or character during the treatment period for the injury.” Cavazos, 

783 N.E.2d at 1239. The Board found that Waid “[u]nquestionably” was
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unable to “perform work of the same kind or character” that he was performing 

when injured. Appellant’s App. Vol. II p. 6. According to the Board, Waid 

“has been so limited since the date of his injury and that limitation continued 

through the date of hearing on this issue.” Id. Masterbrand argues that Waid 

failed to present medical evidence that he was unable to work other than for the 

period from July 1, 2014, to July 28, 2014, and August 25, 2015, until he 

reaches maximum medical improvement. Waid testified that he had severe 

pain in his back and pain shooting down his legs and that he had been 

physically unable to work due to his back pain. The Board found Waid to be 

credible. We have held that “lay evidence, such as a claimant’s own testimony, 

is sufficient to support an initial award of temporary total disability payments.” 

Tanglewood Trace v. Long, 715 N.E.2d 410, 414 (Ind. Ct. App. 1999), trans. 

denied. Further, Dr. Chou diagnosed Waid with “bilateral L5 radiculopathy 

secondary to protruding intervertebral disc at L4-5” that might require surgery. 

Appellant’s App. Vol. II p. 52. Masterbrand’s argument is merely a request to 

reweigh the evidence, which we cannot do. Conway, 734 N.E.2d at 597. We 

conclude that the Board’s decision was supported by substantial evidence and 

reasonable inferences support the Board’s findings and conclusions. Further, 

we cannot say that the Board’s interpretation of the worker’s compensation 

statutes is erroneous.

Conclusion

[25] The Board properly awarded TTD benefits to Waid despite his termination for 

misconduct. We affirm.
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[26] Affirmed. 

Kirsch, J., and Robb, J., concur.