Court of Appeals of Indiana | Memorandum Decision 17A-EX-3053 | July 3, 2018 Page 1 of 12

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

John H. Halstead

Kightlinger & Gray, LLP

Merrillville, Indiana

ATTORNEY FOR APPELLEE

Jeffrey Sturm

George C. Patrick & Associates

Crown Point, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Ameristar Casino,

Appellant-Defendant,

v.

Margaret Romero,

Appellee-Plaintiff.

July 3, 2018

Court of Appeals Case No.

17A-EX-3053

Appeal from the Worker’s 

Compensation Board of Indiana

The Honorable Linda Peterson 

Hamilton, Chairperson

Application No.

C-230740

Najam, Judge.

Statement of the Case

[1] Ameristar Casino (“Ameristar”) appeals the decision of the Worker’s 

Compensation Board (“the Board”) in which the Board determined that 
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Margaret Romero was entitled to worker’s compensation benefits for injuries 

she sustained while working for Ameristar. Ameristar raises the following three 

issues for our review:

1. Whether the Board erred when it relied on a vocational 

report prepared by Romero’s expert.

2. Whether the Board erred when it found that Romero could 

no longer maintain reasonable employment.

3. Whether the Board erred when it calculated Romero’s 

combined permanent partial impairment rating.

And Romero raises the following issue:

4. Whether we should increase her award by 10%.

[2] We affirm the judgment of the Board and agree with Romero’s request to 

increase her award by 10%.

Facts and Procedural History

[3] On June 9, 2014, Romero was injured in the course and scope of her 

employment with Ameristar. In particular, as a result of a slip and fall, Romero 

injured her neck, back, and right shoulder. Ameristar acknowledged that 

Romero had suffered a compensable, work-related injury, and it paid her 

temporary total disability benefits.

[4] Thereafter, Romero filed an application for worker’s compensation benefits, 

and a Single Hearing Member held a fact-finding hearing on her claim. 
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Following that hearing, the Single Hearing Member entered findings of fact and 

conclusions thereon for Romero. Ameristar appealed that decision to the full 

Board, and the Board in turn entered the following findings of fact:

1. On October 26, 2016, Dr. Gregory McComis provided the 

Board with an independent medical evaluation of Plaintiff and 

concluded her injuries of June 9, 2014, were work related and 

entitled her to authorized treatment.

2. Thereafter, Dr. [Nitin] Khanna provided Plaintiff with 

authorized treatment, found her at maximum medical 

improvement (MMI) and evaluated her for impairment.

3. Dr. Khanna provided authorized treatment and gave 

Plaintiff a 9% whole person permanent partial impairment (PPI) 

rating for her cervical spine fusion.

4. Dr. Khanna provided authorized treatment and gave 

Plaintiff a 12% PPI rating for the whole person for her lumbar 

spine fusion.

5. On June 29, 2015, Dr. Khanna combined these two PPI 

ratings to provide Plaintiff with a 21% PPI of the whole person 

for her lumbar and cervical spine injuries.

6. Subsequently, Dr. [Sunil] Dedhia provided Plaintiff with 

authorized treatment for her shoulder injury only, and not for her 

lumbar spine and cervical spine injuries.

7. In the course of treatment, Dr. Dedhia concluded Plaintiff 

was in need of physical therapy for her condition, stating he 

expected her to be at MMI . . . in the range of six to 

nine . . . months.
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8. On August 17, 2016, Plaintiff began physical therapy with 

Athletico.

9. On November 10, 2016, Dr. Dedhia found Plaintiff at 

[MMI] and gave Plaintiff a 12% PPI rating for her right shoulder 

for a full thickness rotator cuff tear and tear of the biceps tendon.

10. Dr. Dedhia converted that into a whole person PPI rating 

of 7% for her shoulder, which is in addition to the previous 

finding of a 21% whole person rating for her lumbar and cervical 

spine injuries.

11. Defendant has stipulated that Plaintiff’s cervical fusion, 

lumbar fusion, rotator cuff tear, and bicep tear are compensable 

injuries.

12. The combined whole person PPI rating given to Plaintiff 

by Dr. Khanna and Dr. Dedhia is 28% for her lumbar spine, 

cervical spine[,] and shoulder injuries.

13. Plaintiff filed [her functional capacity evaluation (“FCE”)] 

report by Thomas Roundtree on August 17, 2016, two days after 

he had prepared it.

14. Thomas Roundtree concluded Plaintiff was permanently 

and totally disabled, unable to sustain any reasonable 

employment in the labor market.

15. Defendant filed its report by Thomas Grzesik in the 

afternoon on the day prior to final hearing on June 15, 2017.

16. Defendant had previously been given additional time to 

obtain a FCE report on the date previously set for final hearing 

on April 27, 2017.
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17. Based upon Thomas Roundtree’s report filed on August 

17, 2016[,] and Dr. Khanna’s notation in his report of April 8, 

2015, that Plaintiff “cannot work,” this matter has long been 

considered to have the potential to result in a [permanent total 

disability (“PTD”)] award.

18. At the time of Thomas Roundtree’s FCE report, Plaintiff 

was 52 years old.

19. Plaintiff was a bartender for Defendant at the time she was 

injured.

20. Plaintiff provided credible, detailed descriptions of her 

limitations during her deposition testimony.

Appellant’s App. Vol. 2 at 8-10. The Board then made the following relevant 

conclusions:

3. Vocational evidence submitted to the Board by Tom 

Roundtree is credible, and it is determined that Plaintiff is 

permanently and totally disabled under the [Worker’s 

Compensation] Act.

4. Plaintiff is not able to engage in any type of reasonable 

gainful employment and is entitled to PTD compensation for five 

hundred (500) weeks at Defendant’s expense from the date of her 

injury.

* * *

7. Defendant is responsible for all prior medical treatment 

which may be unpaid and for any future palliative care.
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8. Plaintiff’s attorney is entitled to a fee of 10% of any 

medical bills which may remain unpaid and on the cost of any 

palliative care to be rendered.

Id. at 10-11. This appeal ensued.

Discussion and Decision

Standard of Review

[5] When reviewing the decisions of the Board, we are bound by the factual 

determinations of the Board and may not disturb them unless the evidence is 

undisputed and leads inescapably to a contrary conclusion. Eads v. Perry Twp. 

Fire Dep’t, 817 N.E.2d 263, 265 (Ind. Ct. App. 2004), trans. denied. 

Additionally, all unfavorable evidence must be disregarded in favor of an 

examination of only that evidence and the reasonable inferences therefrom that 

support the Board’s findings. Id. And we neither reweigh the evidence nor 

judge witness credibility. Id. We will not disturb the Board’s conclusions 

unless the Board incorrectly interpreted the Worker’s Compensation Act. 

Inland Steel Co. v. Pavlinac, 865 N.E.2d 690, 697 (Ind. Ct. App. 2007). 

Issue One: The Board’s Reliance on Roundtree’s Report

[6] On appeal, Ameristar asserts not only that the Board erred but, more 

specifically, that the Board “committed legal error” when it relied on 

Roundtree’s report in that Roundtree prepared his report in August of 2016, but

Romero was not found to have reached her MMI until November of 2016. 

Thus, Ameristar contends that the report was “unreliable and premature” 
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because it was completed “before Romero had finished treatment or reached 

maximum medical improvement.” Appellant’s Br. at 11. For the same 

reasons, Ameristar also contends that Roundtree’s report was “not competent 

evidence.” Id. In sum, Ameristar alleges categorically that the Board erred

when it considered the conclusion in Roundtree’s report that Romero was 

“unable to engage in any type of reasonable gainful employment” and was 

“permanently and totally disabled.” Appellant’s App. Vol 2 at 11, 26.

[7] Ameristar’s arguments on this issue would merit consideration on appeal were 

it not for the well-established rules of appellate review which apply to this 

record and preclude such consideration. First, Ameristar stipulated to the 

admission of Roundtree’s report without limitation. Ex. Vol. at 3. Thus, it has 

waived its challenge to the competency of that report for our review. A 

challenge to the competency of proffered evidence goes to the admissibility of 

that evidence and must be raised to the tribunal where the evidence is offered. 

See, e.g., Ind. Evidence Rules 103(a), 104(a); see also Tucker v. Harrison, 973 

N.E.2d 46, 51-52 (Ind. Ct. App. 2012) (stating that admissibility of evidence 

requires “a requisite showing of competency”), trans. denied. It is axiomatic that 

such a challenge cannot be raised for the first time on appeal. E.g., Ind. Mich. 

Power Co. v. Roush, 706 N.E.2d 1110, 1115 n.4 (Ind. Ct. App. 1999), trans. 

denied.

[8] Second, even if Ameristar’s contention on appeal that the report was “not 

competent evidence” were true, by stipulating to the report’s admissibility

Ameristar invited the error, if any, in the Board’s reliance on that report. 
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Invited error is not subject to appellate review. E.g., Brewington v. State, 7 

N.E.3d 946, 975 (Ind. 2014).

[9] Third, and likewise, “[i]ncompetent evidence may support the Board’s findings 

where there is no objection.” Neidige v. Cracker Barrel, 719 N.E.2d 441, 444 

(Ind. Ct. App. 1999) (citing C.T.S. Corp. v. Schoulton, 270 Ind. 34, 383 N.E.2d 

293, 297 (1978)). Thus, even if Roundtree’s report were improperly admitted, 

which it was not, “[i]t is the rule in Indiana that where incompetent evidence 

has been admitted without objection or exception it may be considered upon 

appeal in determining the sufficiency of the evidence notwithstanding it should

have been excluded upon proper and timely objection.” Hinshaw v. Waddell,

128 Ind. App. 67, 142 N.E.2d 640, 643 (1957). As such, after having stipulated 

to the admission of Roundtree’s report, Ameristar’s arguments on appeal that 

we should disregard Roundtree’s report on the maximum-medicalimprovement issue and rely instead upon the reports of Ameristar’s experts—as 

if Roundtree’s report were not in the record—is untenable as a matter of 

appellate procedure and contrary to law.

[10] Ameristar did not dispute Roundtree’s assessment with its own vocational 

rehabilitation assessment until the day before the fact-finding hearing. Thus, 

both the Single Hearing Member and the Board discounted Ameristar’s 

evidence based on the fact that Romero had not been able to subject it to 

adversarial testing. Moreover, on appeal, Ameristar presents no argument 

supported by cogent reasoning that the timing of Roundtree’s report goes to the 

admissibility of the report rather than to its weight. See App. R. 46(A)(8)(a). 
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For all of those reasons, we decline to consider Ameristar’s arguments on this 

issue.

Issue Two: Whether Romero Could 

Maintain Reasonable Employment

[11] Ameristar next asserts that “[t]he unopposed evidence shows that Romero 

could maintain reasonable employment once she finished medical treatment 

and reached maximum medical improvement in November 2016.” Appellant’s 

Br. at 12. Ameristar’s arguments on this issue are predicated on this Court’s

agreement with Ameristar on Issue One. That is, Ameristar’s arguments here

are not merely an argument regarding the sufficiency of the evidence. Rather,

Ameristar contends that Roundtree’s report should be entirely disregarded on 

the issue of maximum medical improvement. Ameristar asserts that, if this 

Court would merely exclude Roundtree’s report on the MMI issue, we would 

“not need to reweigh any evidence” because the “undisputed, competent 

evidence” from Ameristar’s experts requires a conclusion in favor of Ameristar, 

a conclusion contrary to that reached by the Board. Id. at 9, 12. However, as 

explained above, we do not consider Ameristar’s arguments under Issue One in 

that Ameristar stipulated to the admission of Roundtree’s report and, thus, did 

not preserve its objection to the competency of that report for our review. 

[12] Further, as previously noted, it was Roundtree’s opinion that Romero was

“permanently and totally disabled” and “unable to engage in any type of 

reasonable gainful employment.” Appellant’s App. Vol. 2 at 11, 26. And the 

Board concluded that Roundtree’s vocational evidence “is credible.” Id. at 10. 
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Thus, Ameristar’s argument that this Court adopt a contrary conclusion to that 

of the Board based on the reports of Ameristar’s experts is merely a request for 

this Court to reweigh the evidence, which we will not do. We reject 

Ameristar’s arguments on this issue.

Issue Three: The Board’s Calculation 

of Romero’s Combined PPI Rating

[13] Ameristar next asserts that the Board erroneously calculated Romero’s 

combined PPI rating of 28%. To arrive at Romero’s combined PPI rating, the 

Board added Dr. Khanna’s assessment that Romero’s cervical injury resulted in 

a 9% whole person PPI rating, Dr. Khanna’s assessment that Romero’s lumbar 

injury resulted in a 12% whole person PPI rating, and Dr. Dedhia’s assessment 

that Romero’s shoulder injury resulted in a 7% whole person rating. According 

to Ameristar, “that combined rating is incorrect under the AMA Guides to the 

Evaluation of Permanent Impairment.” Appellant’s Br. at 13.

[14] Again, Ameristar has not preserved this issue for our review as it did not raise 

this issue before the Board. And this was not a finding that Ameristar did not 

expect from the Board; the parties expressly stipulated before the fact-finding 

hearing that whether Romero was “entitled to any permanent partial 

impairment rating” and, “[i]f so, how much,” were issues for the Board to 

resolve. Ex. Vol. at 3. Yet Ameristar did not argue or suggest to the Board that 

AMA guidelines were relevant to resolve those questions or, for that matter, 

that the Board lacked discretion to deviate from those guidelines. As such, we 

will not consider Ameristar’s arguments for the first time on appeal.
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Issue Four: Whether We Will Increase Romero’s Award by 10%

[15] Finally, Romero argues on appeal that this Court should increase her award by 

10%. According to Indiana Code Section 22-3-4-8(f) (2017): “An award of the 

full board affirmed on appeal, by the employer, shall be increased by five 

percent (5%), and by order of the court may be increased ten percent (10%).” 

An order to increase the award by ten percent is not warranted unless the issues 

presented upon appeal are frivolous, appellate review is thwarted by the 

employer’s actions, or there has been an extended period of time within which 

the injured worker has been prevented from obtaining worker’s compensation 

benefits. Inland Steel Co., 865 N.E.2d at 703. 

[16] Romero has not demonstrated either that Ameristar’s actions have thwarted 

appellate review or that she has been prevented from obtaining worker’s 

compensation benefits for an extended period of time. Nevertheless, as 

discussed in Issues One, Two, and Three, Ameristar’s arguments on appeal not 

only lack merit but are not credible. Ameristar has prosecuted this appeal from 

the Board’s decision notwithstanding its own procedural default, including 

waiver and invited error. The doctrine of invited error precludes a party from 

taking advantage of an error that he or she commits or invites. Prime Mortg. 

USA, Inc. v. Nichols, 885 N.E.2d 628, 657 (Ind. Ct. App. 2008). As we have 

already noted, invited error is not subject to appellate review. Brewington, 7 

N.E.3d at 975. In any event, there was no error in the Board’s consideration of 

the stipulated evidence that Ameristar disputes on appeal as “not competent 

evidence.” See Neidige, 719 N.E.2d at 444. And Ameristar has also disregarded 
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the rule of substantive law that even incompetent evidence admitted without 

objection may be considered upon appeal in determining the sufficiency of the 

evidence. See Hinshaw, 142 N.E.2d at 643.

[17] We follow the logic of Ameristar’s argument in the abstract. But when that 

argument is measured against the record, the notion that this court can simply 

set aside evidence admitted by stipulation in order to accommodate Ameristar’s 

legal theory is incompatible with appellate review. See Inland, 865 N.E.2d at 

704 (holding award increase warranted where employer sought to have this 

court go against our standard of review and presented issues that proved to be 

disingenuous or trivial). This case presents an evidentiary dispute. We 

conclude that Ameristar’s prosecution of this appeal is untenable as it is based 

on arguments advanced in spite of the record, including its own stipulation

without limitation, and contrary to our standard of review, which requires that 

we disregard all evidence unfavorable to the Board’s decision unless the 

evidence is undisputed and leads inescapably to a result contrary to the Board’s. 

See id. Therefore, we hold that it is appropriate to increase Romero’s award by 

10%.

[18] In sum, we affirm the Board’s judgment for Romero and direct that Romero’s 

award be increased by 10%.

[19] Affirmed.

Robb, J., and Altice, J., concur.