Janet Daugherty v. Dollar Tree Stores, Inc. (mem. dec.)

MEMORANDUM DECISION Nov 30 2015, 8:48 am
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 ATTORNEYS FOR APPELLEE
T. Reg Hesselgrave Martin T. Spiegel
Palguta & Hesselgrave Spiegel & Cahill, P.C.
Indianapolis, Indiana Hinsdale, Illinois
IN THE
COURT OF APPEALS OF INDIANA
Janet Daugherty, November 30, 2015
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1505-EX-393
v. Appeal from the Worker’s
Compensation Board of Indiana
Dollar Tree Stores, Inc., Application No. C-197818
Appellee-Defendant.
Bradford, Judge.
Case Summary
[1] Appellant-Plaintiff Janet Daugherty was an employee of Appellee-Defendant
Dollar Tree Stores, Inc. On May 20, 2007, while she was working, Daugherty
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fell from a ladder. In the years following the fall, Daugherty was treated for
injuries to several different areas of her body. The Indiana Workers
Compensation Board (“the Board”) found that Daugherty sustained
compensable injuries to her left shoulder, left knee, and left upper extremity, but
that her low back, cervical spine, right shoulder, and right knee conditions were
not causally related to the work accident. The Board also denied Daugherty’s
request for permanent total disability. On appeal, Daugherty argues that there
was insufficient evidence to support the Board’s determinations. We affirm.
Facts and Procedural History
[2] On May 20, 2007, while Daugherty was working at Dollar Tree, she fell from
near the top of an eight-foot ladder. Over the subsequent seven years,
Daugherty received treatment for several injuries, all of which she alleges were
caused by the fall. On April 29, 2014, Daugherty’s worker’s compensation
claim was heard by a single member of the Indiana Worker’s Compensation
Board. On January 12, 2015, the single Board member found that Daugherty
had sustained compensable injuries to her left shoulder, left knee and left upper
extremity as a result of the accident, but that injuries to her lower back, cervical
spine, right shoulder, and right knee were not causally related to the accident.
The single Board member also found that Daugherty suffered twelve percent
permanent impairment and that Daugherty was not entitled to recover costs for
future medical care, nor was she entitled to permanent total disability.
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[3] Daugherty appealed the single hearing member’s decision to the full Board. On
April 22, 2015, the Board slightly modified Daugherty’s award, finding that she
had suffered sixteen percent permanent impairment but affirming the single
Board member’s conclusions in all other respects. The Board’s findings of fact
and conclusions of law are as follows:
Findings of Fact
1. On or about May 20, 2007, Defendant employed Plaintiff at an average
weekly wage of $403.18.
2. On May 21, 2007, Plaintiff reported the following symptoms:
 left knee pain and swelling
 right wrist/forearm pain
Plaintiff did not report other trauma, injuries or conditions on that date.
3. Plaintiff was diagnosed with a left meniscal tear. On July 20, 2007, she
underwent a partial medial meniscectomy at Central Indiana
Orthopedics (“CIO”) and subsequently returned to work.
4. On September 18, 2007, Plaintiff reported increased left elbow pain and
numbness after returning to work following knee surgery.
5. On October 31, 2007, Plaintiff was seen at CIO for left elbow pain. An
EMG was positive for left carpal tunnel entrapment.
6. On November 28, 2007, Dr. Chen saw Plaintiff for left elbow pain with
EMG evidence of carpal tunnel syndrome. Clinical testing, however,
was negative, and there was no evidence of cubital tunnel syndrome. Dr.
Chen described Plaintiff symptoms as diffuse and difficult to correlate,
and recommended that Plaintiff obtain another opinion from Dr.
Heavilon.
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7. On December 12, 2007, Plaintiff saw Dr. Heavilon, who suggested a
carpal tunnel injection. Plaintiff expressed frustration and wanted to
seek consultation with another practice. Dr. Heavilon wrote that a
rapport had not been established with the patient, and recommended that
another opinion be obtained.
8. On January 15, 2008, Plaintiff was seen by Dr. Chen at CIO. Dr. Chen
reported that carpal tunnel syndrome may have been responsible for part
of Plaintiff’s symptoms, but that a carpal tunnel release would not
provide relief. He kept her on restrictions of no lifting, pulling or pushing
more than 10 pounds, and referred her to the Indiana Hand Center.
9. On April 28, 2008, Plaintiff saw Dr. Macadaeg with neck pain and a
secondary complaint of low back pain. This is the first notation of neck
or back symptoms in Plaintiff’s medical records. Plaintiff told Dr.
Macadaeg that her symptoms began about one year ago after falling. Dr.
Macadaeg recommended physical therapy. Defendant’s claim
representative was copied on Dr. Macadaeg’s note.
10. Although Defendant was paid compensation for temporary disability for
some periods of time, Plaintiff continued to work for Defendant
intermittently.
11. Plaintiff testified that she sustained subsequent injury to her left knee
while working with a pallet jack in July or August of 2008.
12. On August 19, 2008, Dr. Macadaeg noted Plaintiff’s report that her neck
symptoms had worsened. A cervical MRI revealed multilevel
degenerative changes, including cervical spondylosis with disc bulging.
13. On August 29, 2008, Dr. Macadaeg recommended therapy and a
possible injection. Dr. Macadaeg opined that Plaintiff’s cervical spine
problems were not amenable to surgical intervention.
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14. Plaintiff did not feel that her left knee improved after the left medial
meniscectomy of July 20, 2007, so her care was transferred to Dr. Bicos.
On January, 19, 2009, Dr. Bicos ordered an MRI, leading to a diagnosis
of recurrent left medical meniscus tear, left knee patellofemoral catching,
and lower extremity numbness and weakness. Dr. Bicos also noted that
Plaintiff had an antalgic gait, a positive straight leg test for radicular pain,
and a negative log roll sign for left hip pain. Dr. Bicos suggested
evaluation by a spine physician for Plaintiff’s low back symptoms.
15. On March 27, 2009. Dr. Bicos performed a left knee arthroscopy, partial
medial meniscectomy and chondroplasty.
16. On June 25, 2009, plaintiff consulted with Dr. Aitken at Rehabilitation
Associates of Indiana. This referral was provided by Defendant.
17. Plaintiff underwent physical therapy at First Choice, where, on
September 11, 2009, the therapist noted that Plaintiff’s motivation was
questionable.
18. On September 14, 2009, Dr. Bicos reported that Plaintiff’s left knee
condition was at maximum medical improvement. He imposed physical
restrictions of no repetitive lifting, twisting or bending more than 15
times per hour. He reported that Plaintiff’s left knee condition warranted
a PPI rating of 8% to the left lower extremity or 3% to the whole person.
19. Plaintiff’s treatment under the Act also included surgical repair of a left
rotator cuff tear. On August 28, 2009, Dr. Kaplan reported that
Plaintiff’s left shoulder condition had reached maximum medical
improvement. Dr. Kaplan imposed permanent restrictions, including no
use of the left arm above shoulder level.
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20. On December 31, 2009, the Board approved a Section 15 compromise
agreement with respect to Plaintiff’s left shoulder injury pursuant to
which Defendant paid Plaintiff consideration of $6,850.00.
21. On January 10, 2010, Dr. Aitken confirmed that Plaintiff’s left knee
condition was at maximum medical improvement.
22. On April 22, 2010, Plaintiff returned to Dr. Aitken for low back and left
knee pain.
23. On December 13, 2010, Plaintiff saw Dr. Gibson at the request of her
attorney. Dr. Gibson reported that Plaintiff had a 7% PPI of the left
lower extremity, and noted that Plaintiff needed additional care for her
low back.
24. Dr. Gibson noted Plaintiff’s reported history of low back and neck pain.
Objectively, an MRI study dated November 26, 2010 demonstrated
degenerative changes of the lumbar spine at L4-5, with bulging and
compromise of the right nerve root. Notwithstanding the history
reflected in Dr. Macadaeg’s April 2008 report, Dr. Gibson wrote “it may
be somewhat difficult to completely connect her back troubles to the
injury of May of 2007.”
25. On December 16, 2010, Plaintiff saw Dr. Phookan for right lower
extremity pain. She reported back pain, on and off, for almost three
years. She reported the onset of leg symptoms starting a year before. Dr.
Phookan diagnosed a right L4-5 herniation and L5 radiculopathy and
recommended surgery.
26. On January 10, 2011, Plaintiff underwent a right L4-5 microdiscectomy.
27. On February 18, 2011, Dr. Phookan released Plaintiff with lifting
restrictions for three months, after which she was to have no restrictions.
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28. Plaintiff saw a family physician, Dr. Kohles, for multiple conditions. On
May 13, 2011, Plaintiff reported right knee pain. Dr. Kohles
recommended a right knee MRI.
29. On July 7, Plaintiff returned to see Dr. Phookan with reports of left hip
and left foot numbness. Dr. Phookan discussed a repeat lumbar MRI.
30. On August 17, 2011, Plaintiff saw Dr. Sexson for right knee pain that she
reported had been ongoing since 2007. Dr. Sexson suspected mild
patellofemoral joint inflammation. Dr. Sexson did not believe Plaintiff
had a meniscal tear and did not feel surgery was warranted.
31. On September 9, 2011, Plaintiff saw Dr. Sorg at Community Spine, on
referral from Dr. Kohles. Plaintiff reported that her low back pain had
improved after the January 2011 surgery, but now reported new pain on
the opposite side. Dr. Sorg recommended x-rays and physical therapy.
32. On November 7, 2011, Dr. Sorg ordered an MRI, which showed
postoperative changes, but no recurrent disc herniations.
33. On January 20, 2014, Plaintiff was examined by Laura Holsey, D.O.,
who opined the following diagnoses were related to the May 20, 2007
incident:
 degenerative disc disease of the cervical spine with bulge and
spurring at C3-4 and bulge and spurring at C4-5
 chronic headaches
 right and left shoulder pain, rotator cuff tears
 right bicipital tendinopathy from prior injury to the rotator cuff
interval
 scarring of the biceps tendon
 small anterior osteophyte of the right shoulder
 right carpal tunnel syndrome
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 left carpal tunnel syndrome with surgical repair and positive EMG
findings
 torn medial meniscus, left knee, status surgical repairs
 antalgic gait
 lumbar/SI pain with signs of lumbosacral radiculopathy
34. Dr. Holsey reported that absent further treatment, Plaintiff would qualify
for an 8% PPI to the cervical spine; 4% PPI to the right shoulder; 8% PPI
to the left shoulder; an additional 9% PPI for left shoulder weakness; a
20% PPI to the left upper extremity for loss of grip strength; a 20% PPI to
the right upper extremity for loss of grip strength; a 7% impairment to the
left lower extremity for the left knee surgery; and a 10% PPI for the low
back. Dr. Holsey combined these losses for a PPI of 45% to the whole
person.
35. The Full Board does not give weight to the findings of Laura Holsey,
D.O. with respect to PPI or to causation of the variety of conditions she
attributes to the May 2007 incident. Some of these conditions did not
arise or were not documented in the medical records until months or
years after the work incident. Physicians such as Dr. Gibson, Dr. Sorg,
Dr. Phookan and Dr. Aitken examined or treated Plaintiff prior to Dr.
Holsey’s 2014 report, and in the Board’s view their notes does [sic] not
establish a medical probability that many of the disputed conditions were
work-related.
36. Michael Blankenship, a vocation expert, reported that Plaintiff is unable
to resume any reasonable employment. Without rejecting Blakenship’s
findings on the vocational issue of disability, the Board rejects Plaintiff’s
claim for permanent total disability on other grounds. For example,
Plaintiff continued to work for periods of time after the May 2007 work
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incident, and the Full Board does not find that all of Plaintiff’s disabling
conditions are causally related to the May 2007 work incident.
37. Plaintiff receives Social Security Disability payments with a disability
date of May 1, 2011.
Conclusions and Award
1. Plaintiff sustained compensable injuries to her left shoulder, left knee,
and left upper extremity in the May 2007 work incident.
2. Plaintiff received compensation for periods of temporary total disability
but also continued to work intermittently after the May 2007 work
incident.
3. The Full Board does not find by a preponderance of the testimony and
evidence that the conditions of Plaintiff’s low back, cervical spine, right
shoulder and right knee were causally related to the work accident.
4. Pursuant to the discretion afforded by Ind. Code 22-3-3-10(i)(14), the
Full Board awards to Plaintiff as against Defendant sixteen (16) degrees
of permanent impairment for the left knee and left carpal tunnel injuries,
without credit to Defendant for the $6,850.00 in consideration already
paid for the left shoulder injury.
5. Plaintiff is not awarded compensation for permanent total disability
under the Act with respect to the May 2007 work incident. Plaintiff
continued to work after the May 2007 incident. Plaintiff’s current
disability status was caused in part by injuries or conditions the Board
finds unrelated to the May 2007 work incident. The May 2007 work
incident itself did not so devastate Plaintiff’s condition as to preclude her
from reasonable employment in the competitive economy.
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6. Plaintiff is not awarded palliative treatment for the compensable left
shoulder, left carpal tunnel syndrome, or left knee injuries.
Appellant’s App. pp. 1-6.
Discussion and Decision
[4] On appeal, Daugherty argues that (1) the Board’s decision was not supported
by the evidence and (2) Dollar Tree had a duty to secure an affirmative
statement from a doctor that her neck and low back problems were unrelated to
the work injury.
I. Sufficiency of the Evidence Supporting the Board’s
Decision
[5] Daugherty claims that the Board erred in finding that Daugherty’s low back,
cervical spine, and right shoulder injuries were not causally connected to her
workplace fall and in finding that Daugherty is not permanently totally disabled
as a result of the fall.
A. Standard of Review
[6] An injury arises out of employment when there is a causal
relationship between the employment and the injury. Muncie
Indiana Transit Authority v. Smith, 743 N.E.2d 1214, 1216 (Ind.
Ct. App. 2001). A causal relationship exists when the injury
would not have occurred in the absence of the accident. See Daub
v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994) (noting that in
a negligence action, a causal connection exists when the harm
would not have occurred “but for” the defendant’s conduct).
The party seeking benefits bears the burden to prove that his or
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her injury arose out of and in the course of employment. Conway
ex rel. Conway v. School City of East Chicago, 734 N.E.2d 594, 598
(Ind. Ct. App. 2000), trans. denied. Ultimately, the issue of
whether an employee’s injury arose out of and in the course of
his employment is a question of fact to be determined by the
Board.
Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 26 (Ind. Ct. App. 2002).
[7] An unsuccessful claimant who seeks to challenge the denial of their application
for benefits appeals from a negative judgment. Perez v. U. S. Steel Corp., 428
N.E.2d 212, 216 (Ind. 1981). When reviewing a negative judgment issued by
the Board,
we will not weigh the evidence nor judge the credibility of
witnesses. Rather, we examine the record only to determine
whether there is any substantial evidence and reasonable
inferences which can be drawn therefrom to support the Board’s
findings and conclusion. Only if the evidence is of a character
that reasonable men would be compelled to reach a conclusion
contrary to the decision of the Board will it be overturned.
Id. “Unless the evidence is ‘undisputed and leads inescapably’ to a result
contrary to the Board’s finding, it will be affirmed.” Hill v. Worldmark
Corp./Mid Am. Extrusions Corp., 651 N.E.2d 785, 787 (Ind. 1995) (quoting
Rensing v. Ind. State Univ. Bd. of Trs., 444 N.E.2d 1170, 1172 (Ind. 1983)).
B. Causation
[8] Dr. Holsey concluded that, among other things, Daugherty’s low back, cervical
spine, right knee, and right shoulder pain were caused by the work accident.
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Daugherty argues that Dr. Holsey’s conclusions are decisive on the issue of
causation because no other doctor rebutted these statements or otherwise
opined that Daugherty’s injuries were not caused by the fall. However, the
Board was not required to accept Dr. Holsey’s conclusions as credible.
[A]n expert’s opinion may be so lacking in probative value as to
be insufficient to prove the existence of a causal relationship. See
[Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994)]. While
the admissibility of an expert’s opinion does not require the
expert to couch an opinion in terms of a particular level of
certainty, an opinion regarding causation that lacks reasonable
certainty or probability is insufficient by itself to support a
judgment. Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d
722, 731 (Ind. 1982)…. Ultimately, the Board is free to accept or
reject expert testimony. Hill, 651 N.E.2d at 787.
Outlaw, 777 N.E.2d at 29.
[9] The Board clearly explained why it did not give weight to Dr. Holsey’s
conclusions.
The Full Board does not give weight to the findings of Laura
Holsey, D.O. with respect to PPI or to causation of the variety of
conditions she attributes to the May 2007 incident. Some of
these conditions did not arise or were not documented in the
medical records until months or years after the work incident.
Physicians such as Dr. Gibson, Dr. Sorg, Dr. Phookan and Dr.
Aitken examined or treated Plaintiff prior to Dr. Holsey’s 2014
report, and in the Board’s view their notes does [sic] not establish
a medical probability that many of the disputed conditions were
work-related.
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Appellant’s App. p. 5. Dr. Holsey did not examine Daugherty until January
20, 2014, nearly seven years after the accident. As such, it was reasonable for
the Board to give more weight to the records of the treating physicians than to
Dr. Holsey’s conclusions. Furthermore, as stated above, we do not reweigh the
evidence or judge the credibility of witnesses. Perez, 428 N.E.2d at 216.
[10] The following evidence supports the Board’s decision that Daugherty’s low
back, cervical spine, right knee, and right shoulder injuries were not causally
connected to her workplace fall: (1) Daugherty first complained of low back
pain on April 28, 2008, approximately one year after her accident; (2) on April
22, 2010, Daugherty again complained of low back pain which she said had
been bothering her for “the past couple of months,” tr. vol. II, p. 3, (3) on
November 26, 2010, Dr. Gibson opined that “it may be somewhat difficult to
completely connect her back troubles to the injury of May of 2007,” appellant’s
app. p. 4; (4) Daugherty’s first complaint of right knee pain was documented by
Dr. Kohles on May 13, 2011, at which time she indicated that she had been
experiencing right knee pain for a week; (5) on July 11, 2007, Daugherty saw
Dr. Marshall Trusler for her left knee pain and Dr. Trusler conducted right
knee, left knee, and head and neck examinations and found that “[t]here is
normal motion in the right knee. No swelling….No tenderness….Normal
strength in the right lower extremity,” and no issues with the head or neck, ex.
vol. III, p. 8; (6) Daugherty’s first complaint of neck pain was documented
November 16, 2007; and (7) there is no record of right shoulder pain until
January 20, 2014.
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[11] Daugherty testified that she did notify her doctors of her neck and back pain
shortly after the accident but that the doctors decided to focus on her more
severe injuries (her left knee and left shoulder) before addressing her back and
neck issues. Daugherty does not explain why the doctors’ notes do not reflect
that she complained of back or neck pain.
When a conflict in the evidence arises we will consider only the
evidence tending to support the Board’s award and which is most
favorable to the appellee. Given substantial evidence supporting
its determination, the Board’s ultimate factual conclusion must
be upheld although this Court might have reached another had it
been the trier of fact.
Tanglewood Trace v. Long, 715 N.E.2d 410, 412 (Ind. Ct. App. 1999) (quoting
Grand Lodge Free & Accepted Masons v. Jones, 590 N.E.2d 653 (Ind. Ct. App.
1992)).
[12] Daugherty also testified that she now suffers from nearly constant and
debilitating neck and low back pain. However, in August of 2008, when she
was examined following her initial cervical MRI, Dr. Daniel Harris described
Daugherty’s cervical spine condition as “relatively mild,” appellant’s app. p. 43,
and Dr. Macadaeg described Daugherty as being in “no apparent distress,” that
her “[n]eck range of motion [was] full,” that her “muscle strength [was] 5/5,”
that physical work restrictions were unnecessary, that she was not at risk of
further injury, and he recommended a “conservative approach” to treat her
pain. Appellant’s App. p. 41.
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[13] Ultimately, the Board had substantial evidence to support its conclusion that
Daugherty failed to prove by preponderance of the evidence that her low back,
spine, right knee, and right shoulder conditions were not causally related to the
work accident. Daugherty is correct that there is evidence supporting an
inference that her injuries were caused by her work accident; however, that fact
does not negate the evidence in favor of the Board’s decision. Daugherty’s
argument is essentially a request for this court to reweigh the evidence, which
we will not do. Perez, 428 N.E.2d at 216
C. Permanent Total Disability
[14] To establish “permanent total disability,” a claimant must establish that they
“cannot obtain or perform ‘reasonable’ types of employment” for the remainder
of their life. Walker v. State, Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 265
(Ind. 1998) (citing Perez, 428 N.E.2d at 215-16).
[15] With regards to permanent total disability, the Board found as follows,
Michael Blankenship, a vocational expert, reported that Plaintiff
is unable to resume any reasonable employment. Without
rejecting Blakenship’s findings on the vocational issue of
disability, the Board rejects Plaintiff’s claim for permanent total
disability on other grounds. For example, Plaintiff continued to
work for periods of time after the May 2007 work incident, and
the Full Board does not find that all of Plaintiff’s disabling
conditions are causally related to the May 2007 work incident.
***
Plaintiff is not awarded compensation for permanent total
disability under the Act with respect to the May 2007 work
incident. Plaintiff continued to work after the May 2007
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incident. Plaintiff’s current disability status was caused in part by
injuries or conditions the Board finds unrelated to the May 2007
work incident. The May 2007 work incident itself did not so
devastate Plaintiff’s condition as to preclude her from reasonable
employment in the competitive economy.
Appellant’s App. pp. 5-6.
[16] The Board’s conclusion was based on reasonable inferences from evidence in
the record. Following the May 2007 injury, Daugherty continued to work for
Dollar Tree with moderate lifting restrictions until she was fired on September
9, 2009. Daugherty admitted that while working at Dollar Tree following the
May 2007 accident, she regularly exceeded her lifting restrictions. Daugherty
also did not begin receiving Social Security Disability benefits until May 1,
2011. In light of the fact that Daugherty was able to continue her work at
Dollar Tree following the accident for nearly two-and-a-half years with only
moderate and intermittent restrictions, we find that there was substantial
evidence to support the Board’s determination that “[Daugherty’s] current
disability status was caused in part by injuries or conditions the Board finds
unrelated to the May 2007 work incident,” and that “[t]he May 2007 work
incident itself did not so devastate Plaintiff’s condition as to preclude her from
reasonable employment in the competitive economy.” Appellant’s App. p. 6.
As such, the Board did not abuse its discretion by denying Daugherty’s request
for permanent total disability benefits.
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II. Employer’s Duty to Treat Potential Injuries
[17] Finally, Daugherty argues that following Dr. Macadaeg’s August 29, 2008
recommendations to treat her neck pain, Dollar Tree had a duty to
expeditiously follow up with the recommended treatments or secure an
affirmative statement from a physician that Daugherty’s neck and low back
issues were not causally related to the work injury. Daugherty contends that
the Board’s finding that Dollar Tree was not responsible for her back and neck
injuries works to “defeat the Act’s humanitarian purposes by lengthening
proceedings, delaying treatment, and increasing costs which are not reimbursed
by the Act.” Appellant’s Br. p. 20.
[18] First, Daugherty claims that “Dollar Tree refuse[d] to provide any further care
and treatments of the low back or of the neck” after Dr. Macadaeg’s August
2008 treatment recommendations. Appellant’s App. p. 4. However, Daugherty
cites no evidence in the record to suggest that Dollar Tree disallowed
Daugherty to pursue further treatment for her neck or low back; rather, there is
simply no mention of Daugherty complaining of low back or neck pain again
until almost two years later in April of 2010. In fact, Dr. Macadaeg instructed
Daugherty to “follow up with [him] on an as needed basis.” Appellant’s App.
p. 39.
[19] Moreover, Daugherty cites no authority to support her argument that Dollar
Tree has a duty to disprove causation as a result of failing to pay for the
treatment of injuries that are not clearly a result of the workplace accident.
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Accordingly, we find that the Board did not err in declining to find that Dollar
Tree had a duty to provide treatment for injuries which were not clearly
causally connected to Daugherty’s fall.
[20] The judgment of the Board is affirmed.
Baker, J., and Pyle, J., concur.
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