MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Jun 15 2016, 7:59 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary T. Williams                                      Thomas F. Cohen
Withered Burns, LLP                                      Hunt Suedhoff Kalamaros LLP
Lafayette, Indiana                                       South Bend, Indiana

Reid D. Murtaugh
Murtaugh Law
Lafeyette, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Donnis Goodman,                                          June 15, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         93A02-1511-EX-2065
        v.                                               Appeal from the Worker’s
                                                         Compensation Board of Indiana
Haan Crafts, LLC,                                        Linda P. Hamilton, Chairman
Appellee-Defendant.                                      Application Number
                                                         C-204767




Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016        Page 1 of 10
                                          Case Summary
[1]   Donnis Goodman suffered a lumbar strain as a result of a work-related accident

      while she was employed by Haan Crafts. While she was being treated for the

      lumbar strain, Goodman was diagnosed with spondylolisthesis at L4-L5.

      Goodman claimed that the spondylolisthesis also resulted from her work-

      related injury, and Haan Crafts claimed that the spondylolisthesis was

      degenerative and not work-related. Unable to resolve this dispute after more

      than four years, the parties submitted the issue to a single hearing member of

      the Indiana Worker’s Compensation Board. The single hearing member found

      that Goodman had not proven her spondylolisthesis was work-related and, as a

      result, denied her requests for compensation beyond what Haan Crafts had paid

      for her lumbar strain. The full Indiana Worker’s Compensation Board (Board)

      affirmed the single hearing member’s decision, and Goodman now appeals.


[2]   In order to be compensable under the Worker’s Compensation Act, an injury

      must arise out of employment. The Board’s finding that Goodman’s

      spondylolisthesis did not arise from her employment is supported by reports

      from three doctors and is fatal to her claim for additional worker’s

      compensation benefits. Therefore, we affirm the Board’s decision.



                            Facts and Procedural History
[3]   The facts most favorable to the Board’s decision are as follows. Goodman was

      employed by Haan Crafts as a machine and silk-screen operator. In January


      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016   Page 2 of 10
      2010, she “sustained a work-related injury to her low back” while attempting to

      remove a large screen from a print table. Appellant’s App. p. 5. Haan Crafts

      accepted Goodman’s worker’s compensation claim as compensable and

      authorized medical care through three physicians: Dr. William Bray, Dr. Erika

      Cottrell, and Dr. Robert Bigler (collectively “authorized physicians”).

[4]   Goodman initially sought treatment from Dr. Bray. He ordered an MRI, which

      showed Goodman had a disk bulge at L4-L5. However, he concluded that

      “[t]he MRI finding of a bulge does not constitute an acute finding, nor does it

      correlate very well with her various and changing lower extremity symptoms. I

      believe this to be an incidental finding[.]” Tr. p. 133. He indicated that the disk

      bulge was “non-work related” and reported that Goodman was at maximum

      medical improvement (MMI) for her work-related injury with no permanent

      partial impairment (PPI).1

[5]   Goodman saw Dr. Cottrell twice in April 2010. Dr. Cottrell diagnosed

      Goodman with lumbar spondylolisthesis. She also noted that the disk bulge at

      L4-L5 “did not match up completely with [Goodman’s] symptoms and that it

      generally does not happen with a pulling injury such as hers.” Id. at 140. After

      discontinuing treatment, Dr. Cottrell conducted a review of Goodman’s



      1
        The phrase “maximum medical improvement” means that a worker has achieved the fullest reasonably
      expected recovery with respect to a work-related injury. Perkins v. Jayco, 905 N.E.2d 1085, 1088-89 (Ind. Ct.
      App. 2009). Once a worker’s injury has stabilized to a permanent and quiescent state, temporary disability
      ceases, and the extent of permanent injury resulting in a degree of impairment (PPI) is determined pursuant
      to the schedules in Indiana Code section 22-3-3-10. Id.



      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016               Page 3 of 10
      medical records from the authorized physicians and concluded that Goodman

      was at MMI with no PPI.

[6]   In May 2010, Goodman went to Dr. Bigler at Pain Care Center. He also

      indicated that Goodman’s MRI did not match her symptoms and that her pain

      was more likely the result of a strain.2 Dr. Bigler performed a translaminar

      epidural steroid injection on May 19, 2010, and released Goodman to return to

      work without restrictions on May 24, 2010.

[7]   Haan Crafts stopped providing benefits when Dr. Bigler released Goodman to

      work without restrictions. On June 1, 2010, Goodman filed an Application for

      Adjustment of Claim with the Board seeking continued benefits.

[8]   During the time that Goodman was being treated by the three authorized

      physicians, she was also being seen by Dr. Mario Brkaric without authorization

      from Haan Crafts. Appellant’s App. p. 6. Dr. Brkaric also diagnosed

      Goodman with lumbar spondylolisthesis. However, unlike the three authorized

      physicians, shortly after Goodman filed her application for adjustment, he

      wrote a report stating that he felt “within reasonable medical certainty that her

      injury at work has caused and correlates with her symptoms.” Tr. p. 50.




      2
        Dr. Bigler’s conclusions are taken from Dr. Cottrell’s July 2010 record review. Goodman contends that it is
      impermissible to rely on Dr. Cottrell’s record review for Dr. Bigler’s conclusions because there is no report
      from Dr. Bigler containing the same information and entered into the record. We note that hearsay is
      admissible in worker’s compensation hearings and may be relied upon by the Board, particularly where, as
      here, there was no objection to the hearsay evidence during the administrative proceeding. Brown Tire Co. v.
      Underwriters Adjusting Co., 573 N.E.2d 901, 903 (Ind. Ct. App. 1991).

      Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016             Page 4 of 10
[9]    In August 2010, Goodman filed a request with the Board seeking further

       medical care with Dr. Brkaric and an independent medical examination (IME).

       After a hearing and review of the medical records from all four doctors, the

       Board denied Goodman’s request.

[10]   Despite the denial, Goodman continued treatment with Dr. Brkaric. In July

       2011, Goodman obtained Medicaid coverage, and Dr. Brkaric performed

       surgery to correct her spondylolisthesis at L4-L5. One year after the surgery,

       Goodman had a herniated disk at L3-L4 with nerve-root impingement. Dr.

       Brkaric surgically corrected that disk in August 2012. According to Goodman,

       her condition was worse after the two surgeries and she now must use a walker

       or a cane. On June 6, 2014, Dr. Brkaric prepared a report indicating that

       Goodman still rated her pain as 8/10. He concluded that she could not return

       to any type of work and gave a PPI rating of 15%.

[11]   In November 2014, after numerous continuances, a single hearing member of

       the Board conducted a hearing on Goodman’s June 2010 application for

       adjustment of her claim. Goodman sought reimbursement of past and future

       medical expenses, a PPI rating, palliative care for the PPI, and permanent total

       disability.3




       3
        It also appears that Goodman sought additional temporary total disability. However, she expressly waived
       any additional temporary total disability in her answers to sworn interrogatories. Tr. p. 173. Therefore, we
       do not address that request here.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016             Page 5 of 10
[12]   The single hearing member found that “[a]ny disability or impairment suffered

       by [Goodman] is the result of conditions unrelated to her work injury.”

       Appellant’s App. p. 7. Accordingly, the single hearing member concluded that

       Goodman was not entitled to compensation for her medical expenses, PPI, or

       total disability. The decision denied Goodman any benefits beyond what Haan

       Crafts had already paid for her lumbar strain. Goodman appealed to the full

       Board, which adopted the single hearing member’s decision.

[13]   Goodman now appeals the decision of the Board.4



                                   Discussion and Decision
[14]   Goodman contends that the Board erred in determining that she is not entitled

       to any benefits, beyond those she already received for her lumbar strain, as a

       result of her January 2010 accident.5 Goodman argues that the January 2010




       4
        Haan Crafts cross-appeals, arguing that Goodman’s petition for full-Board review was untimely and should
       have been dismissed. We do not reach Haan Crafts’s cross-appeal because we affirm the Board’s decision.
       5
         Goodman also argues that the Board’s findings are not sufficiently specific to permit meaningful review
       and, therefore, the order must be reversed and remanded. The Board has a general duty to issue findings 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), trans. denied. When the Board denies
       compensation because the claimant has failed to sustain his burden of proof, the Board should designate
       which material element(s) of the claim the worker failed to prove, and “when the evidence is conflicting, the
       Board should delineate that evidence upon which its analysis and ultimate factual conclusion is based[.]”
       Rork v. Szabo Foods, 436 N.E.2d 64, 69 (Ind. 1982). Here, the Board made clear that Goodman failed to prove
       her spondylolisthesis was work-related—an essential element. As to the conflicting physician reports, the
       findings indicate that the Board relied upon evidence from the three authorized physicians to reach its
       conclusion. This is unlike Smith v. Henry C. Smithers Roofing Co., 771 N.E.2d 1164 (Ind. Ct. App. 2002),
       where the Board did not indicate what evidence it relied upon in the findings. In Smith, this Court “reviewed
       over one thousand pages of evidence admitted at the hearing, including various depositions from Smith’s
       treating physicians and Smith’s medical records[,]” and was still unable to discern “which facts the hearing
       judge relied upon in reaching his decision.” 771 N.E.2d at 1168. The problem in Smith does not exist here.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016              Page 6 of 10
       accident also caused her spondylolisthesis at L4-L5 and that the

       spondylolisthesis has resulted in a 15% PPI, as well as additional medical

       expenses and permanent total disability.


[15]   The Indiana 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). The

       parties dispute whether Goodman’s injury arose out of her employment with

       Haan Crafts. An injury arises out of employment when there is a causal

       relationship between the employment and the injury, and a causal relationship

       exists when the injury would not have occurred in the absence of the accident.

       Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 25 (Ind. Ct. App. 2002), trans.

       denied.


[16]   In evaluating the Board’s decision, we employ a two-tiered review. Triplett v.

       USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008), trans. denied. We first

       review the record to determine if there is any competent evidence of probative

       value to support the Board’s findings and, second, we assess whether the

       findings are sufficient to support the decision. Id. Because this is an appeal

       from a negative decision, we will not disturb the Board’s factual findings unless

       we conclude that the evidence is undisputed and leads inescapably to a contrary

       result. Id. We consider only the evidence that tends to support the Board’s

       decision and any uncontradicted adverse evidence. Id. We will not reweigh the

       evidence or assess witness credibility. Id.



       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016   Page 7 of 10
[17]   The Board found that “[a]ny disability or impairment suffered by Goodman is

       the result of conditions unrelated to her work injury.” Appellant’s App. p. 7.

       This finding is supported by the parties’ stipulation that all three authorized

       physicians found Goodman to be at MMI with no impairment and that she was

       able to return to work without restrictions. All three authorized physicians saw

       the disk bulge at L4-L5 in the MRI and concluded that it was an incidental

       finding, degenerative, not acute, or not related to the injury she sustained at

       work. This evidence sufficiently supports the Board’s finding that Goodman’s

       spondylolisthesis was not work-related.


[18]   Nevertheless, Goodman argues that the three authorized physicians failed to

       state that her condition was not work-related with sufficient medical certainty to

       support the Board’s finding. When a doctor’s testimony falls short of

       “reasonable medical certainty,” it cannot support a decision by itself. Bertoch v.

       NBD Corp., 813 N.E.2d 1159, 1162 (Ind. 2004). However, the doctor’s

       testimony can still be considered in conjunction with other relevant evidence.

       Id.


[19]   Goodman points out that none of the authorized physicians used the words

       “reasonable medical certainty” in their reports concluding that her injury was

       not work-related, while Dr. Brkaric specifically used the words in his report

       concluding that it was work-related. Additionally, Dr. Cottrell expressly did

       not rule out the possibility that the disk bulge was work-related in her initial

       report.



       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016   Page 8 of 10
[20]   First, the fact that Dr. Brkaric used the words of the legal standard in his report

       does not make his conclusion unassailable by conflicting evidence. Likewise,

       the lack of a definitive conclusion from the authorized physicians does not

       prevent the Board from considering their reports in combination with all of the

       evidence. In considering the opinions of all four physicians, the Board gave

       greater weight to the opinions of the three authorized physicians than to Dr.

       Brkaric. While we will not reweigh the evidence, the record does show that all

       three authorized physicians ultimately indicated that they did not believe the

       disk bulge in Goodman’s MRI was work-related, and Dr. Cottrell and Dr. Bray

       indicated this was likely a degenerative, as opposed to an acute, condition.

       That is sufficient evidence to support the Board’s finding.

[21]   Finally, Goodman argues that her case is similar to Smith v. Henry C. Smithers

       Roofing Co., 771 N.E.2d 1164 (Ind. Ct. App. 2002), in that, if her

       spondylolisthesis at L4-L5 was a preexisting condition, then it was aggravated

       by the January 2010 accident, and Haan Crafts should still be liable. In Smith,

       the Board did not address the possibility that Smith’s preexisting medical

       condition was aggravated by his work-related accident, despite the fact that

       “Smith’s physicians indicated that the accident, while not the proximate cause

       of all of Smith’s injuries, aggravated his pre-existing condition[.]” 771 N.E.2d

       at 1168. It is well established that a worker may be awarded compensation

       when a preexisting condition is aggravated by an accident which occurs during

       the performance of his regular work duties. Ellis v. Hubbell Metals, Inc., 366

       N.E.2d 207, 211 (Ind. Ct. App. 1977).


       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016   Page 9 of 10
[22]   However, Goodman failed to prove that her work-related injury aggravated her

       spondylolisthesis. Although Goodman argues that Dr. Bray “fails to report

       whether the work-injury aggravated the disk injury,” Appellant’s Br. p. 13, this

       is not sufficient to support a finding that it did—particularly where three doctors

       found the disk bulge to be unrelated to the work injury, found Goodman to be

       at MMI, and released her to return to work without restrictions.

[23]   As for the first prong of our review, we find that there is competent evidence of

       probative value to support the Board’s finding that “[a]ny disability or

       impairment suffered by Goodman is the result of conditions unrelated to her

       work injury.” Turning to the second prong, the findings must be sufficient to

       support the Board’s conclusion. Indiana Code section 22-3-2-2(a) requires that

       the injury must arise out of the employment for it to be compensable. Because

       the Board found that Goodman failed to prove her injury was work-related, she

       has not met the requirements to prove that her injury is compensable.

       Accordingly, Goodman has not proven she is entitled to additional benefits.


[24]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1511-EX-2065 |June 15, 2016   Page 10 of 10
