FILED
May 09 2017, 9:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Hall Kristen K. Rollison
John H. Shean Charles J. Maiers
Shean Law Offices Due Doyle Fanning & Alderfer,
Bloomington, Indiana LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Ward, May 9, 2017
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1609-EX-2133
v. Appeal from the Indiana Worker’s
Compensation Board
Lowe’s, Linda Peterson Hamilton,
Appellee-Defendant. Chairperson
Application No. C-217099
Bradford, Judge.
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Case Summary
[1] Appellant-Petitioner Matthew Ward applied for worker’s compensation
benefits, claiming that pulmonary embolisms (“PEs”) he experienced in 2012
were caused by a work injury he suffered in 2010 while working for Appellee-
Respondent Lowe’s. Although Ward supported his application with the
opinion of a medical doctor, the Indiana Worker’s Compensation Board (“the
Board”) denied Ward’s application. Ward now appeals, contending that the
Board abused its discretion in denying his application. Because we disagree, we
affirm.
Facts and Procedural History
[2] In 1995, Ward had surgery on his left leg for multiple fractures after he was
struck by a car, and the trauma caused varicose veins and some venous
insufficiency in the lower leg. On July 6, 2010, Ward was working at the
Lowe’s store in Bloomington when he lost his footing, spraining his left ankle
and fracturing the large toe on his left foot. Ward was directed by a doctor to
wear a CAM (“Controlled Ankle Movement”) walking boot to immobilize the
foot and ankle and to elevate the injury. Ward was examined on July 14, 2010,
and the examining physician concluded that Ward’s varicose veins in his left leg
put him at elevated risk of deep vein thrombosis (“DVT”) in the area.
Immobilization is a known cause of DVT, which “can certainly lead to the
development of pulmonary emboli.” Appellant’s App. Vol. II p. 143. Lowe’s
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accepted Ward’s injury as compensable and provided Ward with statutory
medical care through the end of 2010.
[3] Meanwhile, on July 31, 2010, Ward arrived at the Bloomington Hospital
Emergency Room complaining of chest pain. Ward’s examination revealed “a
large amount of embolic material with the pulmonary arteries consistent with
[a] large amount of bilateral pulmonary embolus” and DVT in his lower left
leg, likely secondary to his toe fracture. Appellant’s App. Vol. II p. 68. Ward
was prescribed Coumadin (an anti-coagulant) to treat his PEs. On August 11,
2010, Ward was examined and continued on a CAM walker, with the
examining physician opining that “[h]is toe should essentially be healed at this
point.” Appellant’s App. Vol. II p. 75.
[4] On October 13, 2010, Dr. Russell Dukes examined Ward and noted
improvement in Ward’s PEs. On December 20, 2010, Dr. Mark Hansen
opined that Ward could return to work with no restrictions and evaluated him
to have a zero-impairment rating for both his left ankle and left large toe. On
January 24, 2011, Dr. Dukes evaluated a CT scan of Ward’s chest which was
performed and concluded that “[t]here is no evidence for acute pulmonary
emboli. There has been resolution of the extensive pulmonary emboli
compared with the 07/31/2010 examination and now with only a thin linear
filling defect within the descending right pulmonary artery likely representing
residual scar/fibrotic change or minimal chronic embolus at this location.”
Appellant’s App. Vol. II p. 104. Ward took Coumadin for approximately six to
seven months before discontinuing in March of 2011. A May 26, 2012, medical
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report indicated that “[t]he patient was on Warfarin[1] until March of 2011 but
discontinued when the clots in the lungs were gone, even though the patient still
had [a] number [of] clots in the left lower extremity.” Appellant’s App. Vol. II
p. 114-15.
[5] In December of 2011, Ward left Lowe’s employ and moved to Chicago, taking
a job through a temporary agency doing construction and various other
physical labor at a Wal-Mart store. Ward described the work at Wal-Mart as
“very [labor] intensive.” Appellee’s App. Vol. II p. 3-4. On May 26, 2012,
Ward was stocking water jugs in the store when he began experiencing chest
pain and shortness of breath. Ward was diagnosed with “acute to subacute left
PE” and DVT, and it was concluded that “[the p]atient will require lifelong
anticoagulation[.]” Appellant’s App. Vol. II p. 108.
[6] In September 2012, Ward filed an application for adjustment of claim with the
Board. Dr. Robert Gregori conducted an independent medical examination of
Ward, which entailed interviewing him, examining him, and reviewing his
medical records. Dr. Gregori acknowledged that Ward is “significantly
deconditioned” and “obese,” Appellant’s App. Vol. II p. 145, but concluded
that most of the medical treatment Ward had received since the 2010 work
injury, including the treatment for the May of 2012 episode, was a result of that
injury. Dr. Gregori also calculated “a 23% whole person impairment as a result
1
Coumadin is one of many trade names for warfarin. See https://www.drugs.com/international/
warfarin.html (last visited April 21, 2017).
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of the DVT and pulmonary emboli related to his work injury.” Appellant’s
App. Vol. II p. 146.
[7] In October 2015, Krysten LeFavour, a member of the Board, held a hearing on
Ward’s application. LeFavour concluded that Ward had failed to show that the
May 2012 episode “was caused by his work accident.” Appellant’s App. Vol. II
p. 12. LeFavour concluded that “[i]t is more likely that Plaintiff’s condition in
2012 was related to either an idiopathic aggravation of his condition and/or his
extensive physical labor at his job in 2012.” Appellant’s App. Vol. II p. 12.
Ward then asked the full Board to review Hearing Member LeFavour’s
decision. After a hearing, the Board adopted LeFavour’s decision as its own,
adding that “Dr. Gregori’s report dated June 24, 2014, is not sufficient to
support Plaintiff’s burden of proof that the incident in May of 2012 is causally
connected to Plaintiff’s work accident.” Appellant’s App. Vol. II p. 6. Ward
argues that the uncontroverted medical opinion evidence he presented in the
form of Dr. Gregori’s report compels reasonable people to reach a conclusion
contrary to the Board’s.
Discussion and Decision
[8] The Worker’s Compensation Act requires employers to provide their employees
with “compensation for personal injury or death by accident arising out of and
in the course of the employment[.]” Ind. Code § 22-3-2-2(a). An accident
occurs in the course of employment “when it takes place within the period of
employment, at a place where the employee may reasonably be, and while the
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employee is fulfilling the duties of employment or while engaged in doing
something incidental thereto.” Pavese v. Cleaning Sols., 894 N.E.2d 570, 575
(Ind. Ct. App. 2008). An injury arises out of employment when a causal nexus
exists between the injury sustained and the duties or services performed by the
employee. Id.
[9] Ward contends that the Board erred by denying his application for benefits.
Because Ward had the burden of proving his entitlement to such benefits, he is
essentially appealing from a negative judgment, which we will reverse only if
the evidence is such that reasonable people would be compelled to reach a
contrary conclusion. Outlaw v. Erbrich Prods. Co., 777 N.E.2d 14, 26 (Ind. Ct.
App. 2002), trans. denied. We will not weigh the evidence nor judge the
credibility of witnesses. Id. “Rather, we examine the record only to determine
whether there is any substantial evidence and reasonable inferences which can
be drawn therefrom to support the Board’s findings and conclusion.” Id.
[10] Lowe’s does not dispute that the PEs Ward suffered in July of 2010 were
caused by the accident earlier in the month. Lowe’s does, however, dispute
that the 2010 accident was the cause of the PEs diagnosed in May of 2012. It is
true “that a subsequent incident or accident which results in a new, different or
additional injury is compensable if it is of such nature and occurs under such
circumstances that it can be considered as the proximate and natural result of
the original injury.’” Ind. State Police v. Wiessing, 836 N.E.2d 1038, 1046 (Ind.
Ct. App. 2005) (quoting Yarbrough v. Polar Ice & Fuel Co., 118 Ind. App. 321,
324, 79 N.E.2d 422, 423 (1948) (citations omitted)).
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[11] However, our court has long held that “the subsequent incident or accident may
be such as to constitute an independent intervening agency which breaks the
chain of causation between the two injuries and relieves the employer of
responsibility for the latter.” Id. (quoting Yarbrough, 118 Ind. App. at 324, 79
N.E.2d at 423). “‘Cases may arise where the elements of time and space and
intervening causes may be so involved that the second injury could not be said
to be the proximate, natural, and probable result of the original accident, or the
second accident may so predominate that it overshadows the original cause.’”
Id. at 1047 (quoting Yarbrough, 118 Ind. App. at 324-25, 79 N.E.2d at 423-24)
(internal citations omitted). “Lack of ordinary care on the part of the claimant
which proximately results in the second accident has been held to constitute an
independent intervening agency which breaks the chain of causation between
the two injuries and thus bars recovery for the second.” Id.
[12] Whether the second accident, in the case before us, was the
proximate and natural result of the original injury or whether it
was the proximate result of the appellant’s negligence and
therefore should be regarded as an independent intervening
cause, was a question of fact for the Industrial Board, to be
decided in view of all the circumstances, and its findings in that
regard must be sustained, even though the evidence is
undisputed, if there is any legitimate theory applicable to the
facts on which the award can be upheld.
Yarbrough, 118 Ind. App. at 325, 79 N.E.2d at 424. “In other words, if a rather
slender thread of evidence supports the Board’s decision, we must affirm
because the Board has the power to determine the ultimate facts in the case.”
Wiessing, 836 N.E.2d at 1046 (citation and quotation marks omitted).
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[13] Here, Dr. Gregori’s expert opinion notwithstanding, the record allows for the
conclusion that Ward’s 2012 PEs were more likely proximately caused by an
intervening agent than by the 2010 injury. The Board considered evidence
tending to prove that (1) Ward’s orthopedic injuries and initial PEs had been
resolved by early 2011, (2) Ward stopped taking anticoagulants that were
prescribed to treat his PEs and DVT in March of 2011, and (3) Ward left
Lowe’s and accepted employment that he himself described as very labor-
intensive. The record gives rise to a reasonable inference that Ward decided to
stop taking Coumadin even though he was aware that he suffered from
unresolved DVT that could lead to future PEs. As mentioned, a May 26, 2012,
medical report indicated that Ward “was on Warfarin until March of 2011 but
discontinued when the clots in the lungs were gone, even though the patient still
had [a] number [of] clots in the left lower extremity.” Appellant’s App. Vol. II
p. 114-15. At the very least, the Board was entitled to conclude that this
decision and Ward’s decision to take on labor-intensive work were intervening
causes of the 2012 PEs. Even if we assume that Ward’s 2010 injuries were a
“but-for” cause of the 2012 PEs, significantly more than a “slender thread of
evidence” supports a conclusion that Wade’s decisions concerning his
healthcare and work were their proximate cause.2 Wiessing, 836 N.E.2d at 1046.
2
In the end, of course, the reason Ward stopped taking Coumadin is essentially irrelevant. Even if he had
stopped taking it on doctor’s orders, the Board would have still been entitled to find that to have been an
intervening cause of the 2012 PEs.
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[14] Ward’s argument on appeal is essentially that he should prevail because he
presented an expert medical opinion on causation and Lowe’s did not. To the
extent Ward argues that the Board was obligated to accept Dr. Gregori’s
conclusions because he was qualified as an expert witness or because Lowe’s
did not present expert evidence of its own, we disagree. In fact, we have
specifically rejected such arguments and made clear that there are many ways,
other than expert evidence, for the defense to challenge a plaintiff’s expert.
“Doctors and other expert witnesses are not oracles whose opinions, once
stated, cannot be questioned or refuted by other evidence, even if that evidence
does not come in the form of another expert’s testimony.” Walker v. Cuppett,
808 N.E.2d 85, 95 (Ind. Ct. App. 2004). “It is axiomatic that the accuracy,
consistency, and credibility of an expert’s opinions may properly be challenged
by vigorous cross-examination, presentation of contrary evidence, argument of
counsel, and resolution by the trier of fact.” Id.
[15] Ward relies on our opinion in May v. Ashley F. Ward, Inc., 952 N.E.2d 224 (Ind.
Ct. App. 2011), trans. denied, in which we held that the Board erred by denying
a claim for benefits where the claimant presented an expert’s opinion that his
sinus cancer was caused by his work exposure to heavy metals. Id. at 231.
Ward seems to suggest that the basis of our decision in May was the fact that
the employer did not present any expert opinion evidence to refute the
claimant’s. While this fact was noted in passing (“Further, Ashley Ward
presented no expert testimony in opposition to Dr. Agostino’s testimony.”), it
was not the basis of our decision. Id. May is simply one of those uncommon
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cases where “the evidence is undisputed and leads inescapably to a result
contrary to the Board’s conclusion that May failed in his burden of establishing
causation.” Id. Here, while very little, if any, of the evidence seems to be in
dispute, that does not mean that it inescapably leads to a conclusion contrary to
the Board’s. As we have already concluded, the record left the Board ample
room to conclude that Ward’s 2012 PEs were caused by an intervening agent.
[16] The decision of the Board is affirmed.
Brown, J., concurs.
Vaidik, C.J., dissents with opinion.
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ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Brandon E. Hall Kristen K. Rollison
John H. Shean Charles J. Maiers
Shean Law Offices Due Doyle Fanning & Alderfer,
Bloomington, Indiana LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Ward, [Add Hand-down date]
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1609-EX-2133
v. Appeal from the Indiana Worker’s
Compensation Board
Lowe’s, Linda Peterson Hamilton,
Appellee-Defendant Chairperson
Application No. C-217099
Vaidik, Chief Judge, dissenting.
[17] I respectfully dissent. This Court has made clear that expert medical testimony
is required when, as in this case, the issue of causation presents “a complicated
medical question outside the understanding of laypersons.” Outlaw v. Erbrich
Products Co., 777 N.E.2d 14, 28-29 (Ind. Ct. App. 2002), reh’g denied, trans.
denied; see also Muncie Ind. Transit Auth. v. Smith, 743 N.E.2d 1214, 1217 (Ind.
Ct. App. 2001). This is because “[a]n expert, who has the ability to apply
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principles of science to the facts, has the power to draw inferences from the
facts which a lay [person] would be incompetent to draw.” Daub v. Daub, 629
N.E.2d 873, 878 (Ind. Ct. App. 1994), trans. denied.
[18] In this case, Ward, after moving back to Indiana and filing his application for
additional benefits, went to Dr. Gregori for an independent medical
examination. As it turned out, Dr. Gregori, who is board certified in physical
medicine, provided the only expert opinion in this matter. And while I agree
with the majority that Lowe’s was not required to retain its own expert to rebut
that opinion, I believe that the Board and its members should not reject the
conclusions of a sole medical expert lightly. The reasons for doing so must be
compelling and apparent from the record. See, e.g., May v. Ashley F. Ward, Inc.,
952 N.E.2d 224 (Ind. Ct. App. 2011) (reversing denial of benefits where
claimant presented expert’s opinion on cause of sinus cancer and employer
failed to rebut that expert, either with expert of its own or otherwise), trans.
denied. Because the Board failed to identify any substantial reasons for rejecting
Dr. Gregori’s opinion, and for the other reasons stated below, I would reverse
the Board’s decision.
The Board’s stated reasons for rejecting Dr. Gregori’s opinion
are meritless
[19] Lowe’s summarizes the Board’s reasons for rejecting Dr. Gregori’s opinion as
follows: “Dr. Gregori was opining on a subject outside of his area of expertise;
Dr. Gregori failed to account for a possible alternative cause of Ward’s injury;
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and Dr. Gregori’s conclusions were too vague to be relied upon.” Appellee’s
Br. p. 14. None of these findings is supported by the record.
[20] Regarding Dr. Gregori’s “area of expertise,” the Board noted that he
“specializes in physical medicine and pain management, not pulmonology.”
Appellant’s App. Vol. II p. 10. However, the Board did not explain why only a
pulmonologist would be qualified to opine on—in other words, why a doctor
who specializes in “physical medicine” is unqualified to opine on—the specific
causation issue in this case. Lowe’s also fails to offer any such explanation. In
fact, Lowe’s did not even object to the admission of Dr. Gregori’s report into
evidence; rather, it stipulated to the admission of the report. Absent something
more, the mere fact that Dr. Gregori is not a pulmonologist is not a proper basis
on which to discount his opinion.
[21] As for “a possible alternative cause of Ward’s injury,” Lowe’s contends that the
Board made a finding that Dr. Gregori failed to explain “why the 2010 injury,
and not the 1995 trauma, was responsible for Ward’s May, 2012, treatments[.]”
Appellee’s Br. p. 13. I see no indication that the Board made such a finding,
but even assuming it did, the finding was incorrect. Dr. Gregori specifically
explained that he was not attributing the 2012 DVT and pulmonary emboli to
the 1995 fractures and surgery because Ward went fifteen years with no such
problems after that ordeal, experiencing them for the first time only after the
2010 accident. See Appellant’s App. Vol. II p. 143 (“Based on the records and
the history provided to me by Mr. Ward, he did have a history of a left leg
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trauma with some varicosities. However, there is no indication that he ever had
a deep venous thrombosis or pulmonary emboli.”).
[22] Finally, Lowe’s characterization of Dr. Gregori’s conclusions as “too vague to
be relied upon” is based on the Board’s finding that “Dr. Gregori opined that
‘most all’ of the medical treatment was related to the work injury, but did not
elaborate further.” Id. at 11. But Dr. Gregori did explain what he meant when
he said “most all”:
I believe that most all the medical treatment that Mr. Ward has
received was a result of his pulmonary embolism. Aside from
the cardiac stent that was placed and the work-ups he had for
chest pain, which are cardiac in origin, I believe the other
admissions that have to do with his pulmonary emboli and
DVT are all related to the work injury.
Id. at 143 (emphasis added). In short, Dr. Gregori drew a distinction between
the “admissions that have to do with his pulmonary emboli and DVT,” which
are compensable, and the problems that were “cardiac in origin,” which are not
compensable. The Board’s finding that Dr. Gregori did not “elaborate further”
on his “most all” conclusion is simply incorrect.
The Board’s permanent-partial-impairment award is
erroneous
[23] I also believe that the Board’s treatment of Ward’s permanent-partial-
impairment claim strongly suggests that its rejection of Dr. Gregori’s opinion
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was arbitrary. In her order, Hearing Member LeFavour awarded Ward $14,000
based on the following conclusion:
A review of the medical record and the totality of the evidence
persuade the hearing member that Plaintiff sustained a 10%
permanent partial impairment as a result of the work accident.
Although Plaintiff’s aggravation of his pre-existing condition
substantially resolved following the work accident, he continued
to have symptoms including swelling and pain in his lower
extremity.
Appellant’s App. Vol. II p. 12. As I see it, LeFavour’s conclusion that the
ongoing “swelling and pain” in Ward’s leg were caused by the work accident is
at odds with her conclusion that his 2012 DVT and pulmonary emboli were not
caused by the work accident.
[24] Apparently the Board perceived the same inconsistency. In its order on appeal,
the Board affirmed LeFavour’s PPI award but explained, “Plaintiff’s permanent
partial impairment of 10% of the whole person arises out of Plaintiff’s
orthopedic condition. Plaintiff has not met his burden of proving that he
sustained a permanent partial impairment as a result of the work accident for
the temporary aggravation of his personal pulmonary condition.” Id. at 6
(emphasis added). Attributing the PPI to Ward’s “orthopedic condition”
resolved the inconsistency in LeFavour’s order, but it created another problem:
there is no medical evidence that supports a PPI rating arising out of Ward’s
“orthopedic condition.” To the contrary, and as noted by the majority, “On
December 20, 2010, Dr. Mark Hansen opined that Ward could return to work
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with no restrictions and evaluated him to have a zero-impairment rating for
both his left ankle and left large toe.” Slip op. at 3. The Board’s handling of
this issue indicates to me that its decision was arbitrary.
The Board’s theory of causation is not supported by expert
evidence
[25] The majority focuses on the evidence it believes supports the Board’s
conclusion that “[i]t is more likely that Plaintiff’s condition in 2012 was related
to either an idiopathic aggravation of his condition and/or his extensive
physical labor at his job in 2012.” Appellant’s App. Vol. II p. 12. Relying on
the concept of “independent intervening agency” (a concept not cited by
Hearing Member LeFavour, the full Board, or even Lowe’s), the majority holds
that “[t]he record gives rise to a reasonable inference that Ward decided to stop
taking Coumadin” and that “the Board was entitled to conclude that this
decision and Ward’s decision to take on labor-intensive work were intervening
causes of the 2012 PEs.” Slip op. at 8. I see three problems here.
[26] To begin, the record does not give rise to an inference that Ward “decided”—
on his own or against doctor’s orders—to stop taking blood thinners. The
report cited by the majority merely states that Ward “was on Warfarin until
March of 2011 but discontinued when the clots in the lungs were gone.”
Appellant’s App. Vol. II pp. 114-15. But Lowe’s itself states that Ward was
“taken off” of blood thinners, citing the portion of Ward’s deposition in which
Ward said that Dr. Dukes “took me off of them.” Appellee’s Br. p. 16 (citing
Appellee’s App. Vol. II pp. 32-33).
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[27] The majority alternatively holds that “the reason Ward stopped taking
Coumadin is essentially irrelevant. Even if he had stopped taking it on doctor’s
orders, the Board would have still been entitled to find that to have been an
intervening cause of the 2012 PEs.” Slip op. at 8 (emphasis added). But, of
course, neither Hearing Member LeFavour nor the full Board found the
discontinuation of the blood thinners “to have been an intervening cause of the
2012 PEs.”
[28] Likewise, there is no evidence—expert or otherwise—that supports the
conclusion that Ward’s labor-intensive work in 2012 was the cause of the
pulmonary emboli. For all we know, taking on labor-intensive work decreased
Ward’s risk of developing DVT and pulmonary emboli.
Conclusion
[29] Because Ward presented a doctor’s opinion that his May 2012 episode was
caused by his work injury, and because neither Lowe’s nor the Board identified
substantial reasons for rejecting that opinion, I believe the evidence is of a
character that reasonable people would be compelled to reach a conclusion
contrary to the decision of the Board. See May, 952 N.E.2d at 227; Outlaw, 777
N.E.2d at 26. Therefore, I would reverse the Board’s decision and remand this
matter for a determination of benefits in accordance with Dr. Gregori’s opinion.
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