Norrene Sullivan v. Kindred Nursing Center ( 2012 )

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
FILED
Jul 12 2012, 8:52 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DOUGLAS A. MULVANEY MATTHEW J. HAGENOW
Elkhart, Indiana Newby, Lewis, Kaminski & Jones, LLP
LaPorte, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NORRENE SULLIVAN, )
)
Appellant-Plaintiff, )
)
vs. ) No. 93A02-1202-EX-143
)
KINDRED NURSING CENTER, )
)
Appellee-Defendant. )
APPEAL FROM THE INDIANA WORKER’S COMPENSATION BOARD
Case No. C-180337
July 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Norrene Sullivan filed an Application for Adjustment of Claim with the Worker’s
Compensation Board of Indiana (the “Board”) against her former employer, Kindred
Nursing Center (“Kindred”). A Single Hearing Member awarded Sullivan compensation
for the permanent partial impairment of her low back, but denied benefits for her alleged
temporary total disability, additional medical treatment, and permanent and total
disability. Thereafter, Sullivan petitioned the full Board, which affirmed the Single
Hearing Member’s decision. Sullivan now appeals and presents a single dispositive issue
for our review, namely, whether the Board’s findings are not sufficiently specific to
permit meaningful appellate review of the decision.
We remand with instructions.
FACTS AND PROCEDURAL HISTORY
On March 19, 2004, while employed by Kindred and working at the Regency
Place nursing home in South Bend, Sullivan was operating a floor “scrubbing machine”
when it malfunctioned and “knocked [her] into the wall.” Appellant’s App. at 38.
Sullivan sought medical treatment the next day for back pain, and she notified her
supervisor, Renee Tharp, about the accident and her injury. Tharp filled out an Employee
Incident Report, and Kindred “accepted the claim as compensable” under its worker’s
compensation policy. Brief of Appellee at 2.
Sullivan saw Dr. Todd Graham for her work-related back injury on April 8, 2004.
On that date, Sullivan reported back pain and numbness running down her right leg and
into her toes. Dr. Graham noted a diagnosis of a thoracolumbar contusion and
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recommended “a short course of physical therapy with transition to a home exercise
program.” Appellant’s App. at 43. Dr. Graham released Sullivan to work with a
restriction of no lifting, pushing or pulling more than ten pounds and no bending below
knee height.
On June 3, Dr. Graham examined Sullivan and concluded that she had reached
maximum medical improvement. In his notes from that visit, Dr. Graham stated that he
had offered Sullivan a steroid injection to treat her back pain, but she had rejected that
treatment. Dr. Graham also stated that Sullivan was not a surgical candidate, and he
observed that she had stated that “she does not have any plan or consideration of surgery
anyway.” Id. at 62. Dr. Graham assigned permanent work restrictions for Sullivan of no
lifting, pushing, or pulling more than twenty pounds. And he assigned a permanent
partial impairment (“PPI”) rating of 5% of the whole person. Kindred’s worker’s
compensation carrier paid Sullivan temporary total disability benefits from March 20
through May 23, 2004.
Sullivan did not agree that she had reached maximum medical improvement and
sought an independent medical examination (“IME”), which was scheduled by the Board
for August 16. But Sullivan failed to appear for the IME. Thereafter, Sullivan, without
getting authorization for additional medical treatment from Kindred or the worker’s
compensation carrier, sought medical treatment with Dr. Harold Barnard, Dr. Karen
Meyer, Dr. C. Matthew Gibellato, Dr. Walter Langheinrich, Dr. Kevin Drew, Dr. Jon
Kubley, Dr. Byron Holm, and Dr. Jamie Gottlieb. Sullivan underwent additional
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physical therapy and, in February 2009, Sullivan underwent surgery for an L5-S1 anterior
lumbar fusion, decompression and instrumented posterolateral fusion.
Dr. Gottlieb, Sullivan’s surgeon, stated that the surgery was required to repair the
L5-S1 disc herniation that was related to her injury at work on March 19, 2004.
Following the surgery, Dr. Gottlieb assigned Sullivan a PPI rating of 15% of the whole
person and permanent restrictions of no lifting more than five pounds with any frequency,
limited bending and twisting, and the ability to change positions every thirty to forty-five
minutes. Dr. Gottlieb stated that Sullivan was a candidate for Social Security disability.
Sullivan has not worked since the date of the accident in 2004.
Kindred’s worker’s compensation carrier has paid the following benefits to
Sullivan: $5,686.43 in medical expenses; total temporary disability in the amount of
$3,116.75 for the period March 20, 2004 through May 23, 2004; and total permanent
disability in the amount of $230.54 for the period May 24, 2004 to June 2, 2004.
Sullivan filed her application for adjustment of claim on March 16, 2006, seeking
benefits beyond what Kindred had provided. In lieu of a hearing, the parties filed written
submissions, including exhibits, to the Board. On July 20, 2011, a Single Hearing
Member entered the following relevant findings of fact and conclusions of law:
4. Sullivan claims that as a result of the alleged incident she sustained
an injury to her lower back which has caused her to be permanently and
totally disabled.
***
10. An MRI of the lumbar spine was completed on May 10, 2004. The
MRI findings were a small midline protrusion at L5 of unknown origin or
age and no impingement of the right S1 nerve root or the thecal sac.
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11. As of May 24, 2004, Sullivan was released to return to work with
modified duties and modified hours.
12. Dr. Todd Graham determined that Sullivan had reached maximum
medical improvement as of June 3, 2004, and issued a 5% whole person
PPI at that time.
13. Sullivan disagreed with the determination that she had reached
maximum medical improvement and requested an Independent Medical
Examination.
14. An Independent Medical Examination was scheduled by the Board
to take place by [sic] Dr. Jonathon Javors on August 16, 2004. Sullivan
failed to appear for the evaluation.
15. After an issue arose concerning Sullivan’s absence from the IME
with Dr. Javors and payment for another appointment with Dr. Javors,
Sullivan elected (on her own) to be evaluated by Dr. Walter
Langenheinrich, a neurosurgeon in South Bend.
16. Dr. Langenheinrich determined that Sullivan had a 7% whole person
PPI as a result of the incident.
AWARD
IT IS, THEREFORE, CONSIDERED, ORDERED AND
DECREED by the Worker’s Compensation Board of Indiana that Plaintiff
has failed to meet her burden of demonstrating that Kindred Nursing is
obligated to pay any additional medical benefits; that she is entitled to
additional temporary total disability benefits; or that she is entitled [to]
permanent and total disability benefits as a result of her alleged low back
injury from March 2004. Therefore the Application for Adjustment of
Claim is denied with respect to such claims.
The Plaintiff has met her burden of proof of demonstrating that she
is entitled to permanent partial impairment benefits for the low back injury
and is therefore entitled to recover PPI benefits on the basis of a 5% whole
person PPI rating, which is an award (based on the date of injury) of
$6,500.00.
Appellant’s App. at 6-7. Sullivan appealed to the Full Board, which unanimously
affirmed the Single Hearing Member’s decision. This appeal ensued.
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DISCUSSION AND DECISION
Standard of Review
In challenging the Board’s decision, Sullivan confronts a stringent standard of
review. When we review a decision of the Full Worker’s Compensation Board, “we are
bound by the factual determinations of the Board and will not disturb them unless the
evidence is undisputed and leads inescapably to a contrary conclusion.” Howard v. U.S.
Signcrafters, 811 N.E.2d 479, 481 (Ind. Ct. App. 2004). We must disregard all evidence
unfavorable to the decision and examine only the evidence and the reasonable inferences
therefrom that support the Board’s findings. Id. We will not reweigh the evidence nor
judge the credibility of the witnesses. Id.However, we do not reach the merits of Sullivan’s appeal because, as Sullivan
correctly points out, the Board failed to make findings or conclusions specific enough to
permit intelligent review on appeal. In Smith v. Henry C. Smithers Roofing Co., 771
N.E.2d 1164, 1167 (Ind. Ct. App. 2002), we addressed this issue as follows:
“It is the duty of the Worker’s Compensation Board, as trier of fact . . . , to
make findings which reveal its analysis of the evidence and are specific
enough to permit intelligent review of the Board’s decision.” Smith v. Bob
Evans Farms, Inc., 754 N.E.2d 18, 23 (Ind. Ct. App. 2001) (quoting K-Mart
Corp. v. Morrison, 609 N.E.2d 17, 27 (Ind. Ct. App. 1993), trans. denied)
trans. denied. “Specific findings of basic fact must reveal the Board’s
determination of the various relevant sub-issues and factual disputes which,
in their sum, are dispositive of the particular claim or ultimate factual
question before the Board.” Outlaw v. Erbrich Prods. Co., 742 N.E.2d 526,
530-31 (Ind. Ct. App. 2001) [(“Outlaw I”)] (citing Perez v. U.S. Steel
Corp., 426 N.E.2d 29, 33 (Ind. 1981)). The Board’s findings must be
specific enough to supply the reader with an understanding of its reasons,
based on the evidence, for its finding of ultimate fact. Id. at 531. “The
more complex or technical the sub-issues or factual disputes are in any
claim, the greater the particularity which is needed to satisfy the various
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purposes of the requirement.” Id. Where the factual dispute involves
complex medical issues, the Board is required to issue particularly detailed
findings. See id.
The purpose of the Board issuing findings of fact is to
create a road map so that the readers of the opinion—
including this court—can clearly follow the reasoning used
by the Board to reach its ultimate conclusion. When the
findings of fact are straightforward and detailed, the Board’s
position is bolstered; however, when the Board’s findings are
vague and incomplete, it results in guesswork on the part of
the readers of the decision.
Outlaw v. Erbrich Prods. Co., 758 N.E.2d 65, 68 (Ind. Ct. App. 2001)
[(“Outlaw II”)].
Here, the Single Hearing Member’s “Findings of Fact and Conclusions of Law,”
which were adopted by the Full Board, are inadequate in that there is no mention of the
credibility of the myriad of competing medical opinions offered by Sullivan in support of
her claim, and there is no explanation for the adoption of the 5% PPI rating over the 7%
PPI rating, both of which were included in the findings. Indeed, the Board’s findings
consist solely of stipulated or undisputed facts and do nothing to demonstrate that the
Board considered the evidence and made findings and conclusions based thereon.
However, as we explained in Outlaw v. Erbrich Products Co. 777 N.E.2d 14, 27-
28 (Ind. Ct. App. 2002), trans. denied, (“Outlaw III”):
while the Board is always obligated to enter findings that provide the reader
and the reviewing court with an understanding of the Board’s reasons for its
decision, when the Board delivers a negative judgment adverse to the
claimant, who bears the burden of proof, the Board does not need to make
specific findings of fact disproving a plaintiff’s claim for entitlement to
benefits. Rather, the Board need only determine that the plaintiff has failed
to prove entitlement to the benefits. Thus, the Board in the present case
was not required to make specific factual findings negating or disproving
Outlaw’s entitlement to benefits. . . . Upon concluding that Outlaw was not
entitled to benefits, the Board was only obligated to find that Outlaw had
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failed to meet her burden of proof and to enter findings explaining the
reasons for this determination with sufficient particularity.
(Emphasis added).
Here, we remand to the Board with instructions that it enter new findings of fact
and conclusions of law consistent with this opinion.
Remanded with instructions.
RILEY, J., and DARDEN, J., concur.
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