Ryan Recker v. City of Fort Wayne (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2018, 10:10 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David Van Gilder Larry L. Barnard
Van Gilder & Trzynka, P.C. Grant A. Liston
Fort Wayne, Indiana Carson Boxberger LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ryan Recker, February 28, 2018
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1708-EX-1973
v. Appeal from the Indiana Worker’s
Compensation Board
City of Fort Wayne, The Honorable Linda Peterson
Appellee-Defendant. Hamilton, Chairman
Trial Court Cause No.
C-227162
Pyle, Judge.
Statement of the Case
[1] Ryan Recker (“Recker”) appeals the order of the Indiana Worker’s
Compensation Board (“the Board”) denying his application for worker’s
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compensation benefits. He specifically argues that the Board erred in
concluding that his vertebral artery dissection and cerebellar infarct or stroke
were not injuries arising out of his employment with the City of Fort Wayne
(“the City”). Concluding that substantial evidence and reasonable inferences
support the Board’s conclusion, we affirm the Board’s determination.
[2] We affirm.
Issue
Whether the Board erred in denying Recker’s application for
worker’s compensation benefits.
Facts
[3] Recker was employed as a firefighter trainee by the City from February to May
2014. The physical training in Recker’s program was rigorous. For example,
while wearing firefighting gear that included bunker pants, a dummy oxygen
tank, and a helmet, trainees had to demonstrate the ability to carry loads
weighing 75 pounds and to drag loads weighing 165 pounds.
[4] During physical training in March 2014, Recker began to experience neck and
shoulder pain. In April, Recker began to experience back pain. 1 He saw Dr.
Caleb Suciu (“Dr. Suciu”), a chiropractor, in April for groin, knee, and back
1
Recker had previously suffered from lower back pain in 2011.
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pain. At an April 25 visit, Dr. Suciu noted that Recker’s ear was red and that
he had severe shoulder pain.
[5] At the end of April, Recker went to BHS Clinic North because of continued
back pain. The notes from his visit do not mention that he complained about
neck pain. On April 30, 2014, Recker contacted his supervisor and reported
that “his back was locked up [and] he couldn’t get out of bed.” (Tr. 50). In
early May 2014, Recker voluntarily quit the training program. When he
returned to BHS Clinic North a few days later, Recker reported that his back
pain was improving, but he did not mention neck pain.
[6] On May 14, 2014, Recker saw his primary care physician, Dr. Joseph Maddox
(“Dr. Maddox”) for anxiety and panic attacks. He told Dr. Maddox that he
had been unable to get out of bed due to his anxiety and that he had had
difficulty sleeping. At that time, Recker reported no neck pain, dizziness,
seizures, syncope, light-headedness, or nausea.
[7] Three days later, on May 17, Recker awoke with acute neurological symptoms
including dizziness, nausea, vomiting, and gait imbalance. He was taken to a
hospital emergency room where he was diagnosed with a vertebral artery
dissection and a cerebellar infarct (“stroke”). The medical report completed by
Dr. Madhav Bhat (“Dr. Bhat”) stated that Recker had had “neck pain for [four]
weeks which came on following exercises for firefighting drill wearing []a
helmet [four] weeks ago.” (App. 36).
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[8] In October 2014, Recker filed an application for adjustment of claim with the
Board, wherein he described his injury as follows:
[Recker] was in intense training at [the] Fire Academy including
daily cross fit workouts without rest in full fire gear. He began
experiencing neck pain in April 2014. On morning of 5/17/14,
he woke up with severe headache/neck pain/nausea and lost
consciousness. At ER he was diagnosed with vertebral artery
dissection with cerebral infarction.
(App. 5). The gravamen of his claim was that his vertebral artery dissection and
stroke were injuries caused by his fire department training.
[9] A single hearing member heard Recker’s claim in January 2017. Two medical
documents were admitted into evidence. The first document was a one-page
letter from Dr. Bhat, which stated that Recker’s “right vertebral artery
dissection [was] attributed to trauma of exercising with a helmet for a fire
fighting drill and [was] unrelated to chiropractic adjustment on the thoracic
spine.” (App. 38).
[10] The second document was a ten-page report completed by Dr. Timothy Herron
(“Dr. Herron”), who had performed an independent neurological evaluation on
Recker. Dr. Herron’s report provides, in relevant part, as follows:
Opinion: In my opinion, Mr. Recker’s right vertebral dissection
and subsequent cerebellar stroke were spontaneous and not due
to his training activities for the Ft. Wayne Fire Department in
2014.
Rationale: Vertebral artery dissection (VAD) is due to a tear of
the inner wall of the vertebral artery. The term traumatic VAD is
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used to describe dissection that occurs in the setting of significant
blunt or penetrating trauma. Spontaneous VAD refers to those
cases in which no significant trauma or traumatic event can be
identified. Though spontaneous VAD occurs in the absence of
any significant trauma, or identifiable trauma, patients may have
a history of trivial or minor injury involving twisting or distortion
movements of the cervical spine leading to neck pain, headache
and subsequent dissection of the artery. As blood flows into the
tear of the inner wall, a bulge forms causing partial or complete
occlusion of the artery. This leads to a slowing of blood flow and
the formation of blood clots that can propagate into brain tissue
resulting in a stroke. VAD is usually an acute painful
neurological event due to the tear in the wall of the artery and
stroke symptoms that often follow. Stroke and neurological
symptoms due to VAD usually occur[] acutely, within days, but
cases have been reported in which neurological symptoms are
delayed for longer periods of time.
In Mr. Recker’s case, there is no history of any sudden, twisting
or distortion movements of the cervical spine during his training
at the Ft. Wayne Fire Dept. therefore there is no clear-cut
mechanism linking his training to subsequent VAD.
In my opinion, Mr. Recker’s right VAD more likely than not
occurred on or about 5/17/14 at which time he presented acutely
with the classic symptoms of VAD: severe headache,
photophobia, neck pain, nausea, dizziness and difficulty
swallowing. Though Mr. Recker reported to the ER physician
on 5/17/14 that he had a several-week history of posterior right
neck pain, there is no corroboration of this in the medical
records. Specifically, [three] days earlier, on 5/14/14, Mr.
Recker was seen by his primary care physician, Joseph Maddox,
M.D., at which time there was no documentation of any neck
pain, headache or other neurological symptoms. On 5/5/14 and
4/30/14, Mr. Recker was seen at the BHS Clinic North and
reported low back pain, but no neck pain, headaches or other
neurological symptoms.
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Approximately [three] weeks earlier on 4/15/14, Mr. Recker
reported right shoulder pain, neck pain and stiffness to his
chiropractor, Dr. Suciu, but there is no further documentation
that this symptom was continuous or persistent prior to the time
of his acute presentation 5/17/14.
Because there is no documentation of any persistent neck pain,
headaches or neurological symptoms following Mr. Recker’s
training with the Ft. Wayne Fire Dept. terminating on 5/1/14, in
my opinion, Mr. Recker’s right VAD and cerebellar stroke are
not causally related to his training activities.
(App. 39-48).
[11] After hearing evidence, the single hearing officer denied Recker’s claim in a
detailed order that provides, in relevant part, as follows:
21. At least eighteen days elapsed between the last possible date
of work-related physical activity and the acute onset of [Recker’s]
neurological symptoms, and over three weeks elapsed between
the last mention of [Recker’s] right shoulder pain in the medical
records and the acute onset of his neurological symptoms.
During the intervening time period, [Recker] was seen for low
back pain or anxiety on three occasions without mention of neck
or shoulder symptoms.
22. In light of the delay between [Recker’s] employment activity
and the acute onset of his neurological symptoms, [Recker’s]
condition may have occurred spontaneously after his
employment duties ended. Alternatively, [Recker’s] symptoms
may have become discernible during the course of his
employment without being caused by his employment. Here, the
evidence most favorable to [Recker] is that his symptoms began
during the course of training activity involving motion of the
neck, but in the absence of traumatic event or unusual strain.
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* * * * *
24. The Board concludes by a preponderance of the evidence
that [Recker’s] vertebral artery dissection and stroke did not arise
out of his employment with [the City].
(App. 9-10).
[12] Recker filed an application for review by the full Board in March 2017. Five
months later, in August 2017, the full Board issued an order affirming the single
hearing officer’s denial of Recker’s claim. Recker now appeals.
Decision
[13] Recker argues that the Board erred in denying his application for worker’s
compensation benefits. Specifically, he contends that there is not substantial
evidence supporting the Board’s conclusion that his vertebral artery dissection
and stroke were not injuries arising out of his employment with the City.
[14] The Board, as the trier of fact, has a duty to issue findings of fact that reveal its
analysis of the evidence and that are specific enough to permit intelligent review
of its decision. Wright Tree Service v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct.
App. 2009), trans. denied. In reviewing a worker’s compensation decision, 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. Id. We examine the record only to determine whether there is
substantial evidence and reasonable inferences that can be drawn therefrom to
support the Worker’s Compensation Board’s findings and conclusion. Id. We
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will not reweigh the evidence or reassess witness credibility. Id. As to the
Board’s interpretation of the law, we employ a deferential standard of review of
the interpretation of a statute by an administrative agency charged with its
enforcement in light of its expertise in the given area. Id. The Board will only
be reversed if it incorrectly interpreted the Worker’s Compensation Act (“the
Act”). Id.[15] The Act requires employers to provide their employees with compensation for
injury or death by accident arising out of and in the course of employment.
IND. CODE § 22-3-2-2. An injury arises out of employment when a causal
nexus exists between the injury sustained and the duties or services performed
by the injured employee. Outlaw v. Erbick Prods. Co., Inc., 742 N.E.2d 526, 530
(Ind. Ct. App. 2001), trans. denied. The nexus is established when a reasonably
prudent person considers the injury to be born out of a risk incidental to the
employment, or when the facts indicate a connection between the injury and
the circumstances under which the employment occurs. Manous v.
Manousogianakis, 824 N.E.2d 756, 763 (Ind. Ct. App. 2005). As a general rule,
the issue of whether an employee’s injury or death arose out of and in the
course of his or her employment is a question of fact to be determined by the
Board. Wright Tree Service, 907 N.E.2d at 186. The claimant bears the burden
of proving his right to compensation. Id.
Here, Recker contends that there is not substantial evidence supporting the
Board’s conclusion that his vertebral artery dissection and stroke were not
injuries arising out of his employment with the City. However, we agree with
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the City that Recker’s argument “constitutes nothing more than a veiled
attempt to ask this Court to reweigh the evidence and to find that the opinion of
Dr. Bhat is more persuasive than that of Dr. Herron. This Court simply is not
permitted to do so.” Appellee’s Br. at 12.
[16] Rather, our review of the evidence reveals that Recker visited doctors and
clinics from the end of April until the middle of May 2014. During those visits,
the medical records reveal that Recker complained of back, groin, and knee
pain. He also had panic attacks and anxiety. However, at no time did he
report acute neurological symptoms such as dizziness, seizures,
lightheadedness, or nausea. Recker also never reported any significant blunt or
penetrating trauma during his time as a firefighter trainee. Eighteen days after
he voluntarily quit the training program, Recker experienced a vertebral artery
dissection and a stroke. Dr. Herron summarized this evidence in his report,
which concluded that Recker’s vertebral artery dissection and stroke were not
causally related to his training activities. This evidence is sufficient to support
the Board’s conclusion that Recker’s vertebral dissection and stroke were not
injuries arising out of his employment with the City. We therefore affirm the
Board’s denial of Recker’s application for worker’s compensation benefits.
[17] Affirmed.
Kirsch, J., and Bailey, J., concur.
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