MEMORANDUM DECISION
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. FILED
Apr 11 2017, 9:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEY FOR APPELLEE
Maria E. Linstrom Sonia Das
Mundelein, Illinois Inman & Fitzgibbons, Ltd.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maria Linstrom, April 11, 2017
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1607-EX-1645
v. Appeal from the Full Worker’s
Compensation Board of Indiana
Golden Living Center - The Honorable Linda Peterson
Woodlands, Hamilton, Chair
Appellee-Defendant. Application No. C-213723
Bradford, Judge.
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Case Summary
[1] In November of 2011, Appellant-Plaintiff Maria Linstrom was employed by
Appellee-Defendant Golden Living Center - Woodlands (“Golden Living”).
On November 4, 2011, Linstrom fell at work and was injured (“the November
4, 2011 incident”). She subsequently filed a claim under the Indiana Worker’s
Compensation Act (“the Act”). Golden Living provided compensation for
medical bills relating to some of Linstom’s claimed injuries. Golden Living,
however, disputed whether Linstrom’s claimed neck/cervical spine injury arose
from or was caused by the November 4, 2011 incident.
[2] The parties presented evidence relating to the claimed neck/cervical spine
injury to a Single Hearing Member of the Indiana Worker’s Compensation
Board (the “Single Hearing Member”) who, following a hearing and review of
the evidence, determined that Linstrom had failed to meet her burden of
proving that the claimed neck/cervical spine injury arose out of or was caused
by the November 4, 2011 incident. Linstrom appealed this decision to the Full
Worker’s Compensation Board (“the Board”). Following a hearing, the Board
issued an order in which it also concluded that Linstrom had failed to meet her
burden of proving that the claimed neck/cervical spine injury arose out of or
was caused by the November 4, 2011 incident.
[3] Linstrom challenges the Board’s order on appeal, arguing that the Board erred
by (1) allowing misconduct during the course of the litigation, including the
suppression of evidence, presentation of false evidence, and distortion of the
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facts; (2) failing to award benefits for her claimed neck/cervical spine injury,
which she maintains arose out of or was caused by the November 4, 2011
incident; and (3) failing to make an appropriate Permanent Partial Impairment
(“PPI”) assessment. Finding no error by the Board, we affirm.
Facts and Procedural History 1
[4] In November of 2011, Linstrom was working at Golden Living in Newburgh.
On November 4, 2011, Linstrom was injured during the course of her
employment after her feet became tangled under a patient’s bed, causing her to
fall. As a result of the fall, Linstrom suffered injuries to her right knee and right
shoulder. Linstrom filed a claim under the Act and Golden Living provided
compensation for medical bills relating to Linstrom’s knee and shoulder
injuries. Linstrom subsequently claimed that she had also suffered a
neck/cervical spine injury as a result of the November 4, 2011 incident.
Golden Living disputed whether the claimed neck/cervical spine injury arose
out of or was caused by the November 4, 2011 incident.
[5] On or about June 15, 2015, the parties submitted their dispute relating to the
claimed neck/cervical spine injury to a Single Hearing Member of the Board.
On November 5, 2015, the Single Hearing Member issued an award in which
1
Golden Living has filed a motion to strike certain portions of Linstrom’s Appendix and Appellate Brief.
Finding the assertions contained in this motion to be meritorious, we hereby grant Golden Living’s motion in
an order handed down simultaneously with this memorandum decision.
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the Single Hearing Member found that Linstrom had not met her burden of
proving that the claimed neck/cervical spine injury arose out of or was caused
by or arose from the November 4, 2011 incident.
[6] On December 1, 2015, Linstrom requested that the Board review the Single
Hearing Member’s decision. The Board held a hearing on the matter on May
16, 2016. Following the hearing, on July 7, 2016, the Board issued an order in
which it found and concluded as follows:
FINDINGS OF FACT
1. The facts do not support that Plaintiff injured her neck in
her fall on November 4, 2011. The records reflect that
throughout Plaintiff’s care, she was detailed about reporting her
pain complaints and limitations, but between November 4, 2011
and approximately January 2013, she had no reports of pain or
an injury to the neck or cervical spine area after her fall at work.
Further, stenosis is typically a degenerative process and there is
no evidence that Plaintiff sustained an acute trauma that would
be capable of causing stenosis.
2. The physicians treating Plaintiff, Dr. Nenadovich and Dr.
Schwartz, believed her neck was unrelated to the November 4,
2011 injury, and that there was no surgical pathology in the neck
that was causally related to the work injury, namely, the right
shoulder complaints.
3. Dr. Tyndall’s March 9, 2015 record does not establish
causation between Plaintiff’s neck/cervical spine complaints and
her November 4, 2011 injury. The report fails to offer any
explanation as to how or why Plaintiff’s pain complaints are
related to a 2011 injury, but merely relies on Plaintiff’s report of
her own medical history, which report is inconsistent with the
evidence submitted by the parties. As with Dr. Nenadovich and
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Dr. Schwartz, Dr. Tyndall appeared to be looking for a link
between the right shoulder injury and the neck complaints. The
MRI ordered by Dr. Tyndall and performed in January 2015
showed no new findings and was essentially consistent with the
MRI interpreted by Dr. Nenadovich in 2013. There is no cord
compression and the left-sided findings on the MRI do not
correlate with Plaintiff’s right sided work injury. Dr. Tyndall
states “I believe the cervical disk herniation at C5-6 was the
source of her right shoulder pain, which is the reason why the
shoulder surgery did not improve her symptoms.” However, Dr.
Tyndall’s report does not support any contention that Plaintiff
injured her neck/cervical spine in the November 4, 2011 incident
at work. Moreover, Dr. Tyndall fails to explain how the left-
sided findings on the MRI could create symptoms on the right
shoulder, and therefore, the report is not credible.
4. Plaintiff sustained two intervening incidents that sever any
connection between her neck complaints and the November 4,
2011 injury. First, on April 26, 2013, Plaintiff reported that she
had to apply the brakes in her vehicle very hard to avoid a motor
vehicle collision. As a result of that activity, she complained of
severe neck pain. On March 19, 2015, Plaintiff sustained a
work[-]related injury while working for another employer. The
injury involved her right shoulder. Plaintiff’s March 19, 2015
work injury to her right shoulder while working for another
employer represents an independent intervening agency that
breaks the chain of causation. The injury occurred to the same
body part that was involved in the November 4, 2011 [incident].
If the only link between the cervical spine condition and the
November 4, 2011 incident is the shoulder injury, but the causal
connection of the shoulder injury is broken by the subsequent
injury, there is insufficient evidence to prove causation for the
cervical spine.
5. Plaintiff contends she has complaints of pain, locking, and
giving out in her right knee. Although these complaints may
exist, the evidence submitted shows very few reports [of] on
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going knee problems after Plaintiff was discharged by Dr.
Levenda. While she did report some discomfort in the right
knee, after February 2013, these instances are limited to one or
two reports of knee complaints. On examination, Plaintiff was
found to have full range of motion, and no edema. She walked
without any limp. During both FCEs, she exhibited the ability to
crouch, squat, and perform other movements with her knee.
Plaintiff is not receiving medical treatment for her knee and
Plaintiff has not presented any evidence that her treatment plan is
incomplete or otherwise needs to be supplemented due to the
2011 injury. Plaintiff has not presented evidence demonstrating a
loss of function of her knee.
6. There is no evidence demonstrating medical necessity of
additional medical treatment as to Plaintiff[’s] right shoulder,
right wrist, right hip, and low back and right knee. There is no
evidence to support an award for palliative measures to the
Plaintiff.
7. Plaintiff has not presented any medical opinion supporting
an award for permanent partial impairment other than the
opinions contained in the Joint Medical Exhibit.
8. Plaintiff is entitled to compensation equal to the 6% whole
person permanent partial impairment rating assigned by Dr.
Schwartz due to her shoulder injury. Plaintiff is not entitled to
additional compensation for her other work-related injuries,
based on the opinions of Dr. Levenda and Dr. Nenadovich that
Plaintiff has a 0% PPI for her right knee, hip and spine injuries.
CONCLUSIONS OF LAW
1. The burden of proof to establish an entitlement to worker’s
compensation benefits is on the Plaintiff. Indiana Code §22-3-2-
2(a). In the present case, Plaintiff has not met her burden of
proving an entitlement to worker’s compensation benefits
because the evidence does not establish that she suffered a neck
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or cervical spine injury on November 4, 2011. Plaintiff has not
demonstrated a need for additional medical treatment for her
right shoulder and right knee.
2. In the present case, it may well be that Plaintiff has a
condition in the neck/cervical spine for which medical treatment
is needed. However, the Single Hearing Member is not
persuaded that the evidence sufficiently establishes medical
causation.
3. Evidence or records that merely mention a workplace
injury as part of a patient’s medical history are insufficient to
establish causation for purposes of obtaining worker’s
compensation benefits. Dr. Tyndall’s report, which mentions
Plaintiff’s work injury and relies on Plaintiff’s self-report that her
neck was injured in that incident, does not offer evidence of
sufficient weight to support a neck injury occurring on November
4, 2011.
4. Any need for treatment to Plaintiff’s right shoulder is more
likely than not related to her March 19, 2015 injury rather than
the work injury at hand in this case.
5. The phrase “maximum medical improvement,” also
designated “quiescence” in the context of worker’s
compensation, essentially means that a worker has achieved the
fullest reasonably expected recovery with respect to a work[-]
related injury. The evidence shows that Plaintiff has reached
maximum medical improvement for all her work-related injuries.
6. Plaintiff is entitled to have paid on her behalf or be
reimbursed for all statutory medical expenses associated with the
injuries that have been deemed compensable herein as well as for
that care and treatment overseen and directed by Defendant.
7. Plaintiff is additionally entitled to be reimbursed for any
mileage necessitated by medical treatment for any compensable
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injuries when such treatment occurred outside the county of
injury.
Appellant’s App. Vol. I, pp. 6-9.
Discussion and Decision
[7] On appeal, Linstrom contends that the Board erred by (1) allowing misconduct
during the course of the litigation, including the suppression of evidence,
presentation of false evidence, and distortion of the facts; (2) failing to award
benefits for her claimed neck/cervical spine injury, which she maintains was
caused by the November 4, 2011 incident; and (3) failing to make an
appropriate PPI assessment.
I. Standard of Review
[8] The Worker’s Compensation Board, as the trier of fact, has a
duty to issue findings of fact that reveal its analysis of the
evidence and that are specific enough to permit intelligent review
of its decision. Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind.
Ct. App. 2008). “In reviewing a worker’s compensation
decision, an appellate court is bound by the factual
determinations of the Board and may not disturb them unless the
evidence is undisputed and leads inescapably to a contrary
conclusion.” Christopher R. Brown, D.D.S., Inc. v. Decatur County
Mem’l Hosp., 892 N.E.2d 642, 646 (Ind. 2008). We examine the
record only to determine whether there is substantial evidence
and reasonable inferences that can be drawn therefrom to support
the Worker’s Compensation Board’s findings and conclusion. Id.
We will not reweigh the evidence or reassess witness credibility.
Triplett, 893 N.E.2d at 1116. “As to the Board’s interpretation of
the law, an appellate court employs a deferential standard of
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review of the interpretation of a statute by an administrative
agency charged with its enforcement in light of its expertise in the
given area.” Brown, 892 N.E.2d at 646. The Board will only be
reversed if it incorrectly interpreted the Act. Id.
Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009).
[9] The Indiana Worker’s Compensation Act provides for
compensation of injury or death by accident arising out of and in
the course of employment. Ind. Code § 22-3-2-2. The claimant
bears the burden of proving the right to compensation. Id.;
Bertoch v. NBD Corp., 813 N.E.2d 1159, 1161 (Ind. 2004). “As a
general rule, the issue of whether an employee’s injury or death
arose out of and in the course of his or her employment is a
question of fact to be determined by the Board.” Indiana
Michigan Power Co. v. Roush, 706 N.E.2d 1110, 1113 (Ind. Ct.
App. 1999).
Id. at 186-87.
II. Whether the Board Erred by Allowing Misconduct
During the Course of Litigation
[10] Linstrom asserts that the Board erred by allowing misconduct during the course
of the litigation. Linstrom classifies this alleged misconduct as the suppression
of evidence, presentation of false evidence, and distortion of facts. In support of
this contention, Linstrom asserts that “the Medical Exhibit presented to both
the Single Hearing Member and the Full Worker’s Compensation Board failed
to include the medical records for that period of time that make the case for
Plaintiff’s neck injury.” Appellant’s Br. p. 17. Linstrom also asserts that
Golden Living’s attorney conceded during the hearing before the Board that
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“not all medical records were disclosed to the Single Hearing member and to
the Full Board.” Appellant’s Br. p. 20. Linstrom fails to acknowledge,
however, that she, not Golden Living, had the burden to present any evidence
supporting her claim to the Single Hearing Member and the Board. See Ind.
Code § 22-3-2-2(a) (providing that in Worker’s Compensation cases, the burden
of proof is on the employee and that proof by the employee of one element of a
claim does not create a presumption in favor of the employee with regard to
another element of the claim); see also Bertoch, 813 N.E.2d at 1161 (providing
that the “claimant bears the burden of proving the right to compensation”).
[11] In addition, Linstrom does not specify what proffered evidence was allegedly
suppressed by the Board or explain what false or distorted evidence the Board
allowed Golden Living to submit. Linstrom’s argument seems to be based
solely on her assertion that the Board somehow erred because there were
additional medical records which were not submitted by either party. Again,
Linstrom, and not Golden Living, bore the burden of proving her claim. See
Ind. Code § 22-3-2-2(a); Bertoch, 813 N.E.2d at 1161. Given the lack of
argument pointing to any specific act or omission committed by the Board, we
cannot say that the Board erred in this regard.
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III. Whether the Board Erred by Determining that
Linstrom Failed to Prove that the Claimed
Neck/Cervical Spine Injury Arose Out Of or Was
Caused By the November 4, 2011 Incident
[12] Linstrom asserts that the Board erred in finding that she was not entitled to
recover for her claimed neck/cervical spine injury. Specifically, Linstrom
argues that the Board erroneously determined that she failed to prove that the
claimed neck/cervical spine injury arose out of or was caused by the November
4, 2011 incident.
[13] In Ward v. University of Notre Dame, 25 N.E.3d 172 (Ind. 2015), trans. denied, we
reviewed an employee’s challenge to the determination of the Board regarding
causation. In affirming the findings and conclusions of the Board, we stated the
following:
The single hearing member and the Full Board considered the
medical evidence presented by both sides and found certain
evidence to be more credible. In particular, the single hearing
member and the Full Board found the medical reports of Dr.
Kondamuri, Dr. Graham, and Dr. Schreier to be more credible
and persuasive than other evidence presented. Dr. Graham
found that Ward had reached maximum medical improvement
and that she suffered from what he described as chronic residual
pain syndrome. Dr. Kondamuri found that Ward had reached
maximum medical improvement and was not suffering from
CRPS. Dr. Schreier found that Ward was not suffering from
RSD and had reached maximum medical improvement.
Although there was additional evidence from other doctors who
found that Ward suffered from CRPS or RSD, we cannot say
that the evidence before the single hearing member and the Full
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Board was undisputed and led to a contrary conclusion. We will
not reweigh the evidence or reassess witness credibility. There
was sufficient evidence to support the Full Board’s award, which
used the higher rating given by Dr. Schreier, the physician
independently hired by Ward to conduct an IME.
Ward, 25 N.E.3d at 178.
[14] In the instant matter, Linstrom introduced medical records which she argues
showed that her claimed neck/cervical spine injury was caused by the
November 4, 2011 incident. However, similar to the situation presented in
Ward, the evidence which Linstrom relies on, at most, only indicates that the
evidence before the Board could have potentially led to a different result.
[15] In finding that Linstrom had failed to prove that the claimed neck/cervical
spine injury arose out of or was caused by the November 4, 2011 incident, the
Board relied on evidence which demonstrates that although Linstrom was
detailed about reporting her pain complaints and limitations, the medical
records dated between November 4, 2011 and approximately January of 2013
do not contain any reports of pain or an injury to the neck or spine. In
addition, with respect to the claimed neck/cervical spine injury, the record
indicates that, at some point, Linstrom was diagnosed with stenosis, a typically
degenerative condition. However, as the Board found, the record is devoid of
any evidence indicating that Linstrom suffered an acute trauma that would be
capable of causing stenosis.
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[16] The Board also relied on the opinions of Drs. Nenadovich and Schwartz, both
of whom treated Linstrom following the November 4, 2011 incident. Both Drs.
Nenadovich and Schwartz opined that Linstrom’s claimed neck/cervical spine
injury was unrelated to the November 4, 2011 incident. Drs. Nenadovich and
Schwartz also opined that there was no surgical pathology in the neck that was
causally related to the work injury.
[17] Further, to the extent that Linstrom relies on the medical records relating to her
treatment by Dr. Tyndall, such records are insufficient to prove a causal link
between the claimed neck/cervical spine injury and the November 4, 2011
injury. To the extent that the records relating to Dr. Tyndall’s treatment of
Linstrom could be read to have found a causal connection between the claimed
neck/cervical spine injury and the November 4, 2011 incident, review of these
records demonstrates that Dr. Tyndall relied on Linstrom’s report of her
medical history in creating the records. These records did not contain any
independent findings relating to causation and did not offer any explanation as
to how or why Linstrom’s claimed neck/cervical spine injury was caused by the
November 4, 2011 incident.
[18] The Board considered the disputed medical evidence presented by the parties
and found the opinions of Drs. Nenadovich and Schwartz to be credible. We
will not reweigh the evidence or reassess witness credibility on appeal. Id.
Given the medical records submitted to the Board by the parties, we conclude
that there was sufficient evidence to support the Board’s findings and
conclusions.
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IV. Whether the Board Failed to Make an Appropriate
PPI Assessment
[19] Linstrom also asserts that the Board erred in awarding PPI compensation. We
have previously concluded that the burden of providing a PPI rating lies with
the employee “only where the employee disagrees with the determination
provided by the employer’s physician.” Mem’l Hosp. v. Szuba, 705 N.E.2d 519,
524 (Ind. Ct. App. 1999).
[20] Review of the record reveals that the parties stipulated to evidence
demonstrating that Linstrom had been assigned a 0% PPI rating for her knee
injury and a 6% PPI rating for her right shoulder injury. Linstrom has not
provided any medical opinions or pointed to any evidence which would tend to
suggest that a different PPI rating is appropriate for her knee or shoulder
injuries. Further, to the extent that Linstrom argues that the Board erred by
failing to make a PPI assessment with regard to her claimed neck/cervical spine
injury, we conclude that no such assessment was necessary given Linstrom’s
failure to prove that her claimed neck/cervical spine injury arose out of or was
caused by the November 4, 2011 incident.
Conclusion
[21] In sum, we conclude that the record is devoid of any indication that the Board
allowed misconduct during the course of the litigation, erroneously failed to
award benefits for Linstrom’s claimed neck/cervical spine injury, or
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erroneously failed to make an appropriate PPI assessment. As such, we affirm
the judgment of the Board.
[22] The judgment of the Full Worker’s Compensation Board of Indiana is affirmed.
Najam, J., and Riley, J., concur.
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