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
Dec 19 2012, 9:15 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
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
SANDRA R. PETERS MARY A. SCHOPPER
Chandler, Arizona Due Doyle Fanning, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SANDRA R. PETERS, )
)
Appellant, )
)
vs. ) No. 93A02-1207-EX-562
)
WAL-MART, )
)
Appellee. )
APPEAL FROM THE FULL WORKER’S COMPENSATION BOARD OF INDIANA
The Honorable Linda P. Hamilton, Chairman
Application No. C-190349
December 19, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Sandra Peters (“Peters”), proceeding pro se, appeals from the Indiana Worker’s
Compensation Board’s (“the Board”) denial of her claim for worker’s compensation
disability benefits for post-traumatic stress disorder (“PTSD”) and other physical and
psychological injuries allegedly incurred as a result of her employment with Wal-Mart.
We affirm.
Issue
Peters raises several issues for our review. We restate several of these as whether the
Board’s findings and conclusions denying her claim for worker’s compensation benefits was
supported by sufficient evidence.1
Facts and Procedural History
Peters was, prior to the events giving rise to this case, a long-time employee of Wal-
Mart, and worked at Wal-Mart and Sam’s Club stores in several states. In 2006, Peters began
work at the Wal-Mart store in Mishawaka. Peters was initially assigned to the soft goods
section of the store, was found to be an excellent employee, and was given opportunities to
cross-train in other areas of the store as part of a track toward a management position.
Eventually, however, Peters became involved in disputes with several fellow employees and
managers. Though she was disciplined formally and informally on several occasions, Peters
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Peters presents this Court with several other issues that were not properly presented to the Board,
including whether Wal-Mart denied her worker’s compensation claims in bad faith, discharged her from
employment in retaliation for her claim, and whether judicial estopped operated to preclude Wal-Mart from
advancing a rationale for denying her claim that differed from the rationale offered by the company in a
different setting. Having failed to properly preserve these issues for our review, she has waived our review
of those matters, and we decline to address them in our opinion today.
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was not discharged from her employment.
In January 2007, Peters was injured at work when a clothing rack near her was
suddenly moved, and she was subsequently placed on light duty at the Wal-Mart store. By
late April 2007, however, Peters was determined to be fit to return to a regular work
assignment. By that time, Peters’s position in the soft goods department was no longer
available to her, and she was eventually assigned to work in the grocery section of the store.
This work did not suit Peters, and gave rise to more conflicts between her and other store
staff.
On May 30, 2007, Peters was working at the Mishawaka Wal-Mart store as an
overnight stockperson when she complained of chest pains and indicated to her immediate
supervisor, Randy Shoaf (“Shoaf”), that she could not complete the work assigned to her and
wished to go to the emergency room. An altercation ensued between Peters and Shoaf
concerning Peters’s attendance and work expectations. The altercation eventually moved to
the checkout area of the store and involved at least Peters yelling at Shoaf. The altercation
continued until Peters’s husband arrived to take her to the hospital.
Upon evaluation in the emergency room, Peters was diagnosed as having had a panic
attack, and as being anemic because of uterine bleeding. Peters was admitted into the
hospital for overnight care, and received a blood transfusion to treat her anemia. After
discharge from the hospital, Peters did not return to work at Wal-Mart.
On June 28, 2007, Peters began follow-up care with her primary physician, Michael
Galbraith, D.O. (“Dr. Galbraith”). Dr. Galbraith initially diagnosed Peters with iron
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deficiency anemia, leiomyoma of the uterus, and depressive disorder. He eventually became
concerned that the increase in Peters’s anxiety levels was consistent with Post-Traumatic
Stress Disorder (“PTSD”), and referred her to Katherine L. Steele, Ph.D. (“Dr. Steele”) for
psychological care. Dr. Galbraith and Dr. Steele concurred in rendering a PTSD diagnosis
concerning Peters. Each opined that she would be unable to return to work at the Mishawaka
Wal-Mart because continuing to work at that store would likely trigger additional PTSD
symptoms. On November 12, 2007, Peters checked into another hospital, Saint Anthony
Memorial, where she remained as a psychiatric in-patient for four days and received
treatment for her symptoms. After her discharge from Saint Anthony, Peters continued to
receive care from Dr. Galbraith and Dr. Steele until 2009, when Peters and her family moved
to Indianapolis.
On October 29, 2007, Peters submitted her claim for worker’s compensation benefits
to Wal-Mart. On December 19, 2007, Peters’s claim was denied. On January 16, 2008,
Peters submitted her application for adjustment of claim to the Indiana Worker’s
Compensation Board, contending that her PTSD diagnosis was the result of “abuse from her
former boss.” (Appellant’s App. at 12.)
During the pendency of Peters’s claim before the Board, Peters submitted to an
independent medical examination conducted by Celestine DeTrana, M.D. (“Dr. DeTrana”).
Dr. DeTrana’s evaluation disagreed with the PTSD diagnosis from Dr. Steele and Dr.
Galbraith. She concluded instead that Peters suffered from severe anemia at the time of the
May 30, 2007 incident, and that anxiety from the anemia combined with Peters’s stress-
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coping strategies and tendency to initiate confrontations with coworkers and supervisors
caused Peters’s apparent panic attack.
After further discovery and a hearing on September 21, 2011, a single member of the
Board entered findings and conclusions denying Peters’s claim on November 28, 2011.
Peters appealed to the full Board on December 2, 2011.
During the pendency of the appeal to the Board, Peters moved to supplement the
hearing record with additional evidence related to a suit Peters had filed in the United States
District Court for the Northern District of Indiana; the Board denied the motion. After a
hearing on May 14, 2012, the Board largely adopted the findings and conclusions of the
single member’s decision and, with the addition of some of its own findings and conclusions,
the full Board also denied Peters’s claim. In denying Peters’s claim, both the single member
and the full Board found Dr. DeTrana’s diagnosis more credible than Dr. Galbraith’s and Dr.
Steele’s diagnosis of PTSD caused by a hostile work environment at Wal-Mart.
This appeal ensued.
Discussion and Decision
On appeal, Peters contends that the Board’s denial of worker’s compensation benefits
is erroneous because there was no competent evidence to permit the Board to conclude that
Peters’s symptoms—whatever their diagnosis—was not caused by an injury incurred in the
scope of her employment with Wal-Mart.
“The Worker’s Compensation Act provides for compensation of employees who are
injured by an ‘accident arising out of and in the course of employment.’ Milledge v. Oaks,
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784 N.E.2d 926, 929 (Ind. 2003). To receive worker’s compensation benefits, a claimant
must prove both elements. Id.” Kehr Mid-W. Iron v. Bordner, 829 N.E.2d 213, 215 (Ind. Ct.
App. 2005). On appeal, we review the Board’s decision “‘only to determine whether
substantial evidence, together with any reasonable inferences that flow from such evidence,
support the Board’s findings and conclusions.’” Young v. Marling, 900 N.E.2d 30, 34 (Ind.
Ct. App. 2009) (quoting Bertoch v. NBD Corp., 813 N.E.2d 1159, 1160 (Ind. 2004)). We do
not reweigh evidence or judge the credibility of witnesses. Id.
We apply a two-tiered standard of review when evaluating a decision by the Board.
Id. “We first review the record to determine if there is any competent evidence of probative
value to support the Board’s findings. Next, we examine the findings to see if they are
sufficient to support the decision.” Id. Where the matter was heard and written findings
were entered by a single hearing member and the Board found that the hearing officer’s
decision should be adopted, “‘[s]uch adoption is sufficient to attribute to the … [B]oard the
explicit written findings of the single hearing member and to permit appellate review
accordingly.’” Id. (quoting Dial X-Automated Equip. v. Caskey, 826 N.E.2d 642, 644 (Ind.
2005)). We therefore examine the evidence recited in the single hearing member’s decision
and the findings and conclusions therein, as well as the separate findings and conclusions of
the Board. See id.
Where, as here, an incident is alleged to have resulted in a permanent medical
condition, the alleged causal relationship “is ordinarily a complicated medical question
outside the understanding of laypersons, and expert testimony on the issue is required.”
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Outlaw v. Erbrich Prods. Co., 777 N.E.2d 14, 28-29 (Ind. Ct. App. 2002), trans. denied.
Where a claimed medical condition occurs after an alleged accident, “an expert’s opinion is
insufficient to establish causation when it is based only upon a temporal relationship between
an event and a subsequent medical condition.” Id. at 29. But “[u]ltimately, the Board is free
to accept or reject expert testimony.” Id. (citing Hill v. Worldmark Corp./Mid Am.
Extrusions Corp., 651 N.E.2d 785, 787 (Ind. 1995)).
Here, the single hearing member’s findings reviewed evidence from deposition
testimony given by several of Peter’s coworkers and supervisors at Wal-Mart; testimony from
Dr. Galbraith and Dr. Steele, as well as medical records generated in the course of their
treatment of Peters; the report from Dr. DeTrana’s examination of Peters; and medical
records from two of Peters’s hospital visits. After a review of the evidence, the single
hearing member found that Peters had troubled relationships with coworkers and supervisors,
“initiated the ‘confrontations’ herself,” and “was unable to play well with others due to her
own personality disorder and coping style.” (Appellant’s App. at 20-21.)
The single hearing member also found:
57. The stipulated medical evidence shows that Plaintiff presented to Dr.
Galbraith on June 28, 2007, for follow up after the May 31, 2007
hospitalization. Dr. Galbraith notes Plaintiff was not anxious and not
depressed. The doctor diagnosed iron deficiency anemia, leiomyoma of
uterus, and depressive disorder. PTSD was not diagnosed or
considered as a differential diagnosis.
58. The stipulated medical evidence shows that on November 23, 2009, Dr.
DeTrana, a psychiatrist, who reviewed all of the evidence and evaluated
Plaintiff, determined that she does not have PTSD but rather suffered
from anemia and complications thereto along with a personality
disorder and history of difficult relationships.
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59. Dr. Galbraith testified that anemia can cause anxiety.
60. Dr. Galbraith testified that he did not consider the diagnosis of PTSD
until he spoke with Dr. Steele, the psychologist who made the
diagnosis, and further that he did not know any of the specific
allegations made by Plaintiff against Defendant.
61. Dr. Steele, in her April 21, 2011 letter to Plaintiff’s counsel, notes “[a]s
[Plaintiff’s] therapist, my goal was not to satisfy myself as to the
specifics of her trauma as much as it was to stabilize her
emotionally…”
62. Dr. DeTrana opines that “[Plaintiff] could not possibly have PTSD, as
she did not experience a trauma that was anywhere near the type of
severe, life threatening trauma before the PTSD diagnosis is
considered.”
63. It is incredible that Drs. Galbraith and Steele would diagnose post
traumatic stress without confirming that a trauma did in fact occur.
64. Dr. DeTrana’s opinion is more credible than that of Dr. Steele, who
admits she was not concerned whether an actual trauma occurred before
making the PTSD diagnosis, as well as Dr. Galbraith, who was totally
unaware of the “facts” relied upon by Dr. Steele.
(Appellant’s App. at 20.)
While acknowledging stressful situations in Peters’s past, including family problems
and physical abuse as a child, the single hearing member concluded that Peters “did not
sustain an accidental psychological injury arising out of and in the course of employment,”
and thus was not entitled to worker’s compensation benefits as a result of her claim.
(Appellant’s App. at 21.) The full Board reached a similar conclusion, repeating significant
portions of the single hearing member’s findings concerning the question of Peters’s PTSD
diagnoses, and affirming the single member’s decision as modified. (Appellant’s App. at
26.)
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Based upon our review of the evidence, we cannot conclude that the Board lacked
competent evidence from which to conclude that Peters’s PTSD diagnoses were not credible
or that, in any event, confrontations initiated by other employees at work caused any of
Peters’s psychological disorders. With respect to the credibility of the PTSD diagnoses, such
matters are particularly within the scope of the Board’s competence to review. Neither the
Board nor the single hearing member substantially misrepresented or cherry-picked evidence
from the medical reports and testimony offered by Dr. DeTrana, Dr. Galbraith, or Dr. Steele.
Much of Peters’s argument with respect to the PTSD diagnoses asks that we reweigh the
Board’s determination of the credibility of the various medical professionals, favoring the
diagnoses of Drs. Galbraith and Steele over those of Dr. DeTrana. The Board is free to make
such determinations and we may not reweigh them. Outlaw, 777 N.E.2d at 29. We
accordingly decline to reverse the Board’s decision on that basis.
For similar reasons, we cannot conclude that the Board erroneously denied Peters’s
worker’s compensation claim on the basis of any injury Peters claims arose from intentional
harassment. While Peters is correct that intentional harassment that gives rise to an
accidental injury at work may be compensable under Indiana’s worker’s compensation laws,
“[t]he mere fact that an injury occurs at work does not, ipso facto, render it compensable.”
Hansen v. Von Duprin, Inc., 507 N.E.2d 573, 576 (Ind. 1987).
Here, Dr. DeTrana concluded that Peters’s psychological coping mechanisms,
aggravated by her anemia, caused her to misperceive her relationships with fellow Wal-Mart
employees and led to “an unfortunate case of misattribution which has gotten out of hand,”
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so that “[w]hat felt like a panic attack on May 30, 2007 was in large part due to the growing
symptoms of profound anemia.” (Appellant’s App. at 190.) Dr. DeTrana’s assessment is
consistent with the deposition testimony of Shoaf and several other Wal-Mart employees,
who testified that Peters would initiate or escalate confrontations with coworkers. These
escalations included Peters’s conduct on May 30, 2007, which gave rise to the present case.
In light of this evidence, the Board found Dr. DeTrana’s assessment credible and did
not conclude that any harassment or other conduct originating with Peters’s fellow employees
gave rise to her panic attack or other psychological or physiological symptoms. Rather, the
Board concluded that Peters “initiated the ‘confrontations’ herself.” (Appellant’s App. at
21.) To the extent Peters now directs us to the reports and testimony of other medical
providers, we decline her invitation to reweigh the evidence.
We cannot conclude that the Board erred when it found that any psychological or
other injury Peters suffered on May 30, 2007, did not arise from an accidental injury at work.
Thus we do not disturb the Board’s decision to deny her claim for worker’s compensation
benefits.
Affirmed.
VAIDIK, J., and BROWN, J., concur.
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