## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEY FOR APPELLEE : RONALD L. WILSON PAUL L. FIELDS Badell & W ilson, P.C. The Law Offices of the Liberty Rushville, Indiana Mutual Group Carmel, Indiana


## IN THE COURT OF APPEALS OF INDIANA

JANET STEWAR T, ) ) Appellant

- Plaintiff, ) ) vs. ) No. 93A02

- 1108

- EX

- 793 ) RICHMOND COMMUNITY SCHOOLS, ) ) Appellee

- Defendant. )

APPEAL FROM THE WORKER’S COMPENSATION BOARD OF INDIANA Linda P. Hamilton, Chairman Cause No. C

- 178177

March 28, 2012 OPINION
- FOR PUBLICATION S HARPNACK , Senior Judge2 STATEMENT OF THE CASE
Janet Stewart appeal s the final judgment of the Worker’s Compensation Board of
Ind iana (“the Board”) affirming a Single Hearing M ember’s (“the Member”)
determination of permanent partial impairment

. The Board had previously reversed the Member’s determination that Stewart was permanently and totally disabled and had
remanded the determination to the Member to establish Stewart’s degree of permanent partial impairment. W e affirm

. ISSUE Stewart raises one issue, which we restate as: whether the Board’s determination that she is not permanently and totally disabled is s upported by sufficient evidence

.

FACTS AND PROCEDURAL HISTORY Stewart worked for the Richmond Commu nity School Corporat ion (“the School”) as a physical education teacher. On December 5, 2003, Stewart was spotting a student as he attempted a gymnastic maneuver . The student fell onto Stewart , causing her to break her right leg. The injury required surgery and other treatm ent. Stewart applied for, and received, worker’s compensation benefits for the surgery and other treatment. After surgery, Stewart continued to experience pain and difficulty putting weight on the leg

. On December 5 , 2004, she fell at home and broke he r right hip. Stewart contended that the fall was caused by continuing problems with her right leg. She did not return to work at the School after the hip injury. Stewart applied for worker’s compensation benefits related to her hip injury.
A fter a heari ng, the Member determined that the hip injury was related to Stewart’s3

work

- related leg injury and that Stewart was permanently and totally disabled. The School appealed the decision to the full Board. T he Board affirmed the Member’s
conclusion that Ste w art’s hip injury was a compensable claim. However, the Board reversed the Member’s determination that Stewart was permanently and totally disabled and remanded for a calculation of her permanent partial impairment. Neither party appealed the Board’s deci sion.
On r emand, the parties filed factual stipulati ons and statement s of contentions. In Stewart’s statement of conte ntions she argued , as she had at the prior hearing, that she was permanently and totally disabled. In the alternative, she asserted th at she “has 39% impairment.” Appellant’s App. p. 33. T he Member concluded that Stewart had sustained a “39% permanent partial impairment in the amo unt of $60, 100.00.” Id. at 31. Stewart sought review from the full Board, which affirmed the Member’s det ermination. This appeal followed.
DISCUSSION AND DECISION In reviewing a worker’ s compensation decision, an appellate court is bound by the factual determinations of the Board and may not disturb them unless the evidence is undisputed and leads inesca pably to a contrary conclusion. Christopher R. Brown, D.D.S., Inc. v. Decatur Cnty. Mem. Hosp. , 892 N.E.2d 642, 646 (Ind. 2008). We examine the record only to determine whether there is substantial evidence and reasonable inferences that can be drawn the refrom to support the Board’ s findings and conclusion s . Id. As to the Board’ s interpretation of the law, an appellate court employs a deferential standard of review to the interpretation of a statute by an administrative4

agency charged with its enforceme nt in light of its expertise in the given area. Id. The Board will only be reversed if it inc orrectly interpreted the Worker’ s Compensation Act. Id. Stewart argues that the evidence establishes that she is permanently and totally
disabled and the Boar d’s decision must be reversed. The School contends that Stewart has waived her claim of permanent and total disability because she did not appeal the Board ’s determination that she was not p ermanently and totally disabled

. Stewart has not filed a Reply Brief or otherwise responded to the School ’s claim
of waiver. When an appellee fails to file a brief responding to the a ppellant’s arguments, we may apply a less stringent standard of review, reversing the judgment below if the appellant establishes prima facie error. Ferguson v. Stevens , 851 N.E.2d 1028, 1031 (Ind. Ct. App. 2006). In this case, Stewart’s failure to respond to the School ’s claim of waiver is substantially like an appellee’s failure to file a brief

. The School ’s claim, if meritorious, is dispositive of Stewart’s appeal. Therefore, we determine that the School need only establish a prima facie case in support of its claim

. Prima facie is defined as at first sight, on first appearance, or on the face of it. Id

. To address the School ’s claim of waiver, w e must determine whether the Board’s decision that Stewart was not permanently and totally disabled w as a final, appealable judgment

. The School cites no cases in support of its argument and relies solely on Indiana Code section 22

- 3

- 4

- 8 (b) (1986) , which governs appeals of the Board ’s decisions . We have found more direct guidance on this subject in our Supreme Court’s
decision i n Cox v. Worker’s Comp. Bd. , 675 N.E.2d 1053 (Ind. 1996). In that case, a5

group of injured workers filed a fed eral class action against the Board , asserting that the
Boar d improperly refused to issue final award s on compensation claims until the claimant s reached a state of maximum medical improvement. The Board contended that a decision on temporary benefit issu es would not be a final order subject to judicial review. The federal court asked our Supreme Court to address several certified questions, including: “without disposing of all of the issues that may exist or arise between the parties . . . [m]ay the Boar d make an enforceable and appealable determination that temporary total disability benefit s have been properly terminated? ” Id.
at 1055. Our Supreme Court reviewed the governing statutes and determined that the Board was authorized to issue an order add ressing temporary total disability benefits, and that such an order would be enforceable in court. Next, the Court turned to whether such an order would be appealable. The Court noted that by statute, a party to a proceeding before the Board may seek rev iew of an award at the Court of Appeals. See id. at 1056

- 57 (ci ting Ind. Code § 22

- 3

- 4

- 8 ) . Giving the words of the statute their plain and ordin ary meaning, and noting that the Indiana Worker’s Compensation Act is intended to remove obstacles and provide a more certain, expeditious remedy for injured employees, our Supreme Court concluded 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 a s to all issues

. Here , the Board’s reversal of the Member’s det ermination that Stewart was permanently and to tally disabled is analogous to a ruling on temporary total disability as6

discussed in Cox

. The parties fully argued the question of permanent and total disability, and nothing remained to be addressed after the Board issued its ruling. In fact, the Board’s determination that Stewart was not permanently and totally disabled is more definite than a determination of temporary total disability, be cause the status of temporary total disability is subject to further evidentiary developments. Furthermore, appellate review of the Board’s decision that Stewart was not permanently and totally disabled would have promoted judicial efficiency, because a r eversal of the Board’s decision would have eliminated the need for further proceedings before the Member. Consequently, based on the holding in Cox , we conclude that the Board’s determination that Stewart was not permanently and totally disabled was a fin al award subject to appellate review. Stewart failed to seek appellate review of the Board’s determination. As a result, Stewart has waived any claim of error related to the Board’s decision that she is not permanently and totally disabled

. T he School h as presented a prima facie case in support of its claim of waiver and we therefore find no reversible error.
CONCLUSION
For the reasons stated above , we affirm the judgment of the Board

. Affirmed

. BAILEY, J., and CRONE, J., concur.