By Ann Stewart
By Karen Dutcher
What follows is a compilation of important workers’ compensation caselaw reviews and summaries from the last six months.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.