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DTCI: Workers' comp caselaw reviews

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By Ann Stewart
By Karen Dutcher

dutcher-karen-dtci-mug Dutcher
stewart-ann-dtci-mug Stewart

What follows is a compilation of important workers’ compensation caselaw reviews and summaries from the last six months.

12/29/2011

Moorehead Electric Co., Inc. v. Jerry Payne, 962 N.E.2d 657 (Ind. Ct. App. 2011)

Issue: Did the Workers’ Compensation Board of Indiana err when it determined that plaintiff’s injury sustained outside the workplace arose from the prior compensable injury?

Payne injured his shoulder at work. The employer, Moorehead Electric Co., accepted the claim as compensable and provided benefits and medical treatment including two surgeries. Shortly after the second surgery and before Payne reached maximum medical improvement (MMI), he fell on the sidewalk while attending a wedding reception and reinjured the shoulder resulting in an additional surgery. At the time of the fall, Payne wore a very bulky arm brace apparatus, and the hearing member and full Workers’ Compensation Board found that the apparatus contributed to the fall. Moorehead Electric argued that the new injury resulted, at least in part, from Payne’s negligence. The board affirmed the hearing member’s finding that the new injury was causally related to the work injury and therefore, the employer had to provide treatment and benefits during the period of recovery from the fall that occurred outside of the workplace.

The Court of Appeals affirmed the board decision, stating that “because the original shoulder injury arose out of Payne’s employment, and there was no intervening, causal act of negligence, the subsequent injury is a consequence which flows from it, and therefore, likewise arises out of his employment with Moorehead.”

01/12/2012

Quinn v. Accurate Builders, 961 N.E.2d 70 (Ind. Ct. App. 2012)(unpub.)

Issue: Was evidence sufficient to support the Workers’ Compensation Board’s conclusion that plaintiff was not entitled to permanent and total disability benefits?

Quinn, a carpenter, suffered a severe back injury when a deck holding three workers collapsed and fell on him. His treatment included multiple back surgeries and, ultimately, implantation of a spinal cord stimulator (SCS) to treat ongoing pain. Quinn continued to suffer back pain although the evidence indicated that he received some benefit from the SCS. A functional capacity evaluation determined that Quinn could perform light duty work, although the record showed that his pain increased when he tried to work. Quinn applied for and received Social Security disability benefits. About three years after the injury date, Quinn reached MMI and obtained a PPI rating of 23 percent whole person. Quinn obtained a vocational evaluation concluding that he was permanently and totally disabled. The hearing member and full board concluded that Quinn was not entitled to permanent total disability benefits (PTD), but was entitled to the 23 percent whole person PPI rating. The board also found that Accurate Builders would have to provide continuing palliative care for an unspecified period.

The Court of Appeals affirmed the administrative decisions and concluded that based on the record, the board properly denied the claim for PTD benefits. The hearing member and board decisions relied heavily on very specific factual information from the medical records, and the court deferred to the factual determinations made at the lower levels weighing conflicting evidence.

01/19/2012

Meyers v. Rising Sun-Ohio County Community School Corp., 961 N.E.2d 541 (Ind. Ct. App. 2012)(unpub.)

Issues: Did the trial court err in granting summary judgment to the employer dismissing plaintiff’s Frampton claim of retaliatory discharge? Did the trial court err in granting summary judgment to defendant dismissing plaintiff’s claim of intentional infliction of emotional distress?

Meyers, a special education teacher, sought workers’ compensation benefits after she hit her head at work. After the injury, she missed several days of work because of migraine headaches resulting from the blow to her head. The injury occurred on Dec. 19, 2008. On Feb. 6, 2009, Rising Sun issued a suspension letter to Meyers citing several instances of misconduct, including inappropriate and dangerous handling of a student, inability to work with colleagues to develop behavior plans for students, failure to leave lessons plans on days when she was absent, failure to follow procedures outlined by administrators in dealing with students, and failure to teach academic skills to students during class time. Rising Sun provided Meyers with a hearing and then terminated her. Meyers sued, claiming retaliatory discharge and intentional infliction of emotional distress. The Court of Appeals granted summary judgment to Rising Sun on both claims. With regard to the Frampton claim, the court concluded that Meyers failed to produce evidence that Rising Sun’s proffered legitimate nondiscriminatory reasons for discharge were pretext for discrimination. Regarding the intentional infliction of emotional distress claim, the court held that Meyers abandoned her appeal as to that claim by failing to raise it in her initial brief and that raising it in her reply brief did not preserve the issue on appeal.

01/26/2012

Reeves v. Citizens Financial Services, 960 N.E.2d 860 (Ind. Ct. App. 2012)

Issue: Did the board err when it concluded that plaintiff was not entitled to additional palliative care?

Reeves injured his back and hip in a work-related automobile accident in 2003. After several years of ongoing back pain that radiated into Reeves’ leg and treatment and evaluation by several different physicians, a single hearing member determined that Reeves had reached MMI and that he was entitled to a 5 percent whole person PPI rating, but he was not entitled to additional medical or palliative care. The full board affirmed this decision, and Reeves appealed the determination that he was not entitled to palliative care. The Court of Appeals affirmed the board decision.

The court found that although some of the doctors mentioned that Reeves would need pain medication, therapy and exercise in the future, none of the records specify the treatment that would be needed, and the doctors failed to address whether palliative care would reduce the extent of Reeves’ impairment. The court stated that the board has authority to order payment for palliative care when the evidence supports the finding that the palliative care would limit the extent of the impairment.

01/26/2012

Bible v. St. Vincent Hospital, 961 N.E.2d 545 (Ind. Ct. App. 2012) (unpub.)

Issues: Did the Workers’ Compensation Board issue adequate findings of fact to support its decision affirming the denial of plaintiff’s claim? Did the single hearing member err in judging the credibility of plaintiff’s hearing testimony?

Bible filed an application for adjustment of claim on July 10, 2007, claiming that she injured her elbow at work when she banged it against a door on March 27, 2007. In mid-March, Bible had been off work on an unrelated medical leave related to an auto accident. Before she returned to work, on March 30, 2007, Bible told a nurse who examined her at St. Vincent’s that her elbow hurt and that she had not injured it at work. Bible obtained care for her elbow from her personal physicians and told them that she did not remember any specific injury to the elbow. In September 2007, St. Vincent denied Bible’s claim for benefits after investigating and concluding that the elbow pain did not arise from a work-related injury. The single hearing member denied the claim, finding that Bible was not a credible witness. The full board stated that “the Opinion issued by the Single Hearing Member should be affirmed.”

Bible appealed on the grounds that the full board decision was inadequate because it lacked independent factual findings. The Court of Appeals rejected this argument, finding that it is permissible for the board to adopt a hearing member’s decision and the factual findings accompanying that decision, and that is what the board did when it stated that it was affirming the single hearing member’s decision. The court also rejected Bible’s argument that the hearing member erred in judging the credibility of her testimony. The court stated that it would not second-guess the weighing of Bible’s credibility.

03/09/2012

Curry, et al. v. D.A.L.L. Anointed, Inc., 966 N.E.2d 91 (Ind. Ct. App. 2012)

Issue: Did the trial court err in dismissing plaintiffs’ tort claim as barred by the exclusive remedy provision of the Workers’ Compensation Act?

Curry, an employee at a fast-food restaurant, tripped and injured herself on the employer’s premises. The accident occurred on her day off. She came to the restaurant at 3:45 p.m. to attend an employee meeting that started at 5 p.m. Evidence failed to establish if Curry was required to attend the meeting or if she was paid for attending the meeting. When she arrived, she ordered food and took it outside to eat while waiting for the meeting. Curry tripped when she took her trash to the trash can. She did not seek workers’ compensation benefits, but the employer treated the injury as compensable, directing treatment and paying benefits. Curry and her husband sued for premises liability seeking tort damages, including loss of consortium for the husband. The trial court and Court of Appeals agreed with D.A.L.L.’s position that the injury was compensable under the Act and the exclusive remedy provision of the Act barred the claim.

03/27/2012

Arnold v. Rose Acre Farms, Inc., 966 N.E.2d 107 (Ind. Ct. App. 2012)

Issue: Did the Workers’ Compensation Board err in concluding that plaintiff did not sustain an injury arising out of and in the course of his employment when he was involved in an accident while turning left on a public road onto the employer’s gravel road?

Arnold suffered serious injuries on the way to work. While performing a left turn from the public road onto a gravel road owned by Rose Acre Farms that provided the only access to the work site, a pick-up truck struck Arnold’s car. The hearing member concluded that the injuries did not occur in the course of employment because the accident occurred on a public road, and at the time of the accident, Arnold was subject to the same risks as the general public. The hearing member concluded that “[a]n accident occurring on a public thoroughfare, where the general public is exposed to the same risks as the employee, is not considered in the course of employment.” Arnold argued that the public road existed on a right-of-way on property owned by Rose Acre Farms and that dictated a contrary result because, as the court noted, the employer had no control over the use of the road as a public thoroughfare. The full board adopted the decision of the hearing member and the Court of Appeals affirmed.

03/28/2012

Stewart v. Richmond Community Schools, 964 N.E.2d 927 (Ind. Ct. App. 2012)

Issue: Did the plaintiff waive her right to contest the full board’s finding that she was not permanently and totally disabled when she did not appeal that decision upon the court’s remand of the case?

Stewart, a P.E. teacher, broke her leg in a work-related accident and then fell and broke her hip. The hearing member determined that the broken hip was compensable because it was related to the work-related injury and that Stewart was permanently and totally disabled. The board affirmed the decision that the broken hip was a compensable claim but reversed the decision that she was PTD and remanded the case for calculation of PPI. Neither party appealed the board’s decision. On remand, Stewart argued that she was PTD or, in the alternative that she had a 39 percent PPI. The hearing member awarded her a 39 percent PPI. Stewart appealed, arguing that the board’s determination that she was not PTD was unsupported by sufficient evidence. The Court of Appeals decided that the board determination that Stewart was not PTD was a final award subject to appellate review. The board then concluded that Stewart waived her right to claim error in that determination when she failed to appeal that determination. Finally, the court concluded that the board presented a prima facie case to support its claim of waiver, so the board committed no reversible error.

03/28/2012

Marshall v. Heider, 966 N.E.2d 213 (Ind. Ct. App. 2012)(unpub.)

Issue: Did the full board err in awarding $6,000 in attorney fees to claimant’s discharged attorney, Heider?

The claimant, Wilson, suffered a compensable injury to her back that required surgery resulting in complications, permanent nerve damage, a 27 percent whole person PPI, and need for future medical treatment. Wilson hired Heider to represent her in her workers’ compensation case. The fee agreement between Wilson and Heider provided a contingent fee arrangement and provided that if Wilson discharged him before the contingency was met, Heider would get fees at the rate of $150 per hour. Heider received a settlement offer of $38,500, which Wilson rejected, and a subsequent offer of $75,000, which Wilson also rejected. Wilson discharged Heider and hired Marshall. Marshall obtained a settlement of the case for $122,000 and future medical expenses. Heider then filed a notice of lien with the Workers’ compensation board seeking $13,950 in fees. The hearing member awarded Heider $6,000 in fees, and the board affirmed the award. Marshall appealed. The court held that the fee contract between Heider and Wilson was reasonable and enforceable. The court found that, based on the undisputed evidence, Heider had worked 7.5 hours on the case. The court concluded that under the fee contract, Heider should receive $1,125. The court noted that although Heider argued for a different interpretation of the contract, to the extent the contract was ambiguous, the court should construe ambiguities against the drafter, Heider. It remanded the case with instructions to award Heider $1,125 in fees.

05/31/2012

Tellis v. Sipes, 2012 U.S. Dist. LEXIS 75625 (U.S. Dist. Ct., Southern Dist. of Indiana)

Issue: Whether plaintiff established federal jurisdiction for his third-party action?

Tellis suffered compensable injuries as a result of a motor vehicle accident in Indiana. After the treating physicians determined Tellis had reached MMI and returned him to work without restrictions, Tellis filed suit against the other driver involved with the accident. Judge Barker granted defendant’s motion to dismiss without prejudice finding that the court lacked subject matter jurisdiction because Tellis did not establish the minimum amount in controversy.

05/4/2012

Hunt v. DaVita, Inc., 680 F.3d 775; 2012 U.S. App. LEXIS 9119 (U.S. Ct. App., 7th Circuit)

Issue: Did the plaintiff offer sufficient evidence to support her claim that the employer retaliated for her intention to file a workers’ compensation action?

Hunt suffered a heart attack requiring bypass surgery. While on medical leave, she received treatment for carpal tunnel syndrome. After six months of leave, DaVita Inc. terminated her employment pursuant to an established leave policy. Hunt filed suit, alleging that she was fired in retaliation for her intention to file a workers’ compensation claim related to her carpal tunnel syndrome. The U.S. District Court granted DaVita’s summary judgment related to the retaliation claims. The 7th Circuit affirmed, finding Hunt offered no evidence that the relevant decision-maker knew of her potential workers’ compensation claim or was influenced by anyone who did know of it.

06/7/2012

Cleveland v. Maple Leaf Farms, Inc., 2012 U.S. Dist. LEXIS 79188 (U.S. Dist. Ct., Northern Dist. of Indiana)

Issue: Are there issues of material fact related to plaintiff’s ADA claim or Indiana state retaliation claim?

Cleveland was injured at work as a result of two falls: one in the parking lot and the other when he tripped over a shredder bin. He indicated he was fine and did not need medical attention. Cleveland was fired the next day. He had not yet filed a workers’ compensation claim. Cleveland alleges that his employment was terminated because he was disabled or because he was going to file a workers’ compensation claim. The court granted Maple Leaf Farms’ motion for summary judgment related to the retaliation claim, finding that there were no issues of material fact that could lead a reasonable jury to conclude that Maple Leaf fired Cleveland because it was concerned that he would file a workers’ compensation claim.•

Ms. Dutcher and Ms. Stewart are Of Counsel in the Indianapolis office of Ice Miller and are members of the Workers’ Compensation Section of the DTCI. The opinions expressed in this article are those of the authors.
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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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