      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                       FILED
      regarded as precedent or cited before any                              Feb 28 2018, 10:10 am
      court except for the purpose of establishing                                CLERK
      the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                                 Court of Appeals
      estoppel, or the law of the case.                                            and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      David Van Gilder                                         Larry L. Barnard
      Van Gilder & Trzynka, P.C.                               Grant A. Liston
      Fort Wayne, Indiana                                      Carson Boxberger LLP
                                                               Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Ryan Recker,                                             February 28, 2018
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               93A02-1708-EX-1973
              v.                                               Appeal from the Indiana Worker’s
                                                               Compensation Board
      City of Fort Wayne,                                      The Honorable Linda Peterson
      Appellee-Defendant.                                      Hamilton, Chairman
                                                               Trial Court Cause No.
                                                               C-227162



      Pyle, Judge.


                                       Statement of the Case
[1]   Ryan Recker (“Recker”) appeals the order of the Indiana Worker’s

      Compensation Board (“the Board”) denying his application for worker’s

      Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018        Page 1 of 9
      compensation benefits. He specifically argues that the Board erred in

      concluding that his vertebral artery dissection and cerebellar infarct or stroke

      were not injuries arising out of his employment with the City of Fort Wayne

      (“the City”). Concluding that substantial evidence and reasonable inferences

      support the Board’s conclusion, we affirm the Board’s determination.


[2]   We affirm.


                                                         Issue
                 Whether the Board erred in denying Recker’s application for
                 worker’s compensation benefits.


                                                         Facts
[3]   Recker was employed as a firefighter trainee by the City from February to May

      2014. The physical training in Recker’s program was rigorous. For example,

      while wearing firefighting gear that included bunker pants, a dummy oxygen

      tank, and a helmet, trainees had to demonstrate the ability to carry loads

      weighing 75 pounds and to drag loads weighing 165 pounds.


[4]   During physical training in March 2014, Recker began to experience neck and

      shoulder pain. In April, Recker began to experience back pain. 1 He saw Dr.

      Caleb Suciu (“Dr. Suciu”), a chiropractor, in April for groin, knee, and back




      1
          Recker had previously suffered from lower back pain in 2011.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 2 of 9
      pain. At an April 25 visit, Dr. Suciu noted that Recker’s ear was red and that

      he had severe shoulder pain.


[5]   At the end of April, Recker went to BHS Clinic North because of continued

      back pain. The notes from his visit do not mention that he complained about

      neck pain. On April 30, 2014, Recker contacted his supervisor and reported

      that “his back was locked up [and] he couldn’t get out of bed.” (Tr. 50). In

      early May 2014, Recker voluntarily quit the training program. When he

      returned to BHS Clinic North a few days later, Recker reported that his back

      pain was improving, but he did not mention neck pain.


[6]   On May 14, 2014, Recker saw his primary care physician, Dr. Joseph Maddox

      (“Dr. Maddox”) for anxiety and panic attacks. He told Dr. Maddox that he

      had been unable to get out of bed due to his anxiety and that he had had

      difficulty sleeping. At that time, Recker reported no neck pain, dizziness,

      seizures, syncope, light-headedness, or nausea.


[7]   Three days later, on May 17, Recker awoke with acute neurological symptoms

      including dizziness, nausea, vomiting, and gait imbalance. He was taken to a

      hospital emergency room where he was diagnosed with a vertebral artery

      dissection and a cerebellar infarct (“stroke”). The medical report completed by

      Dr. Madhav Bhat (“Dr. Bhat”) stated that Recker had had “neck pain for [four]

      weeks which came on following exercises for firefighting drill wearing []a

      helmet [four] weeks ago.” (App. 36).




      Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 3 of 9
[8]    In October 2014, Recker filed an application for adjustment of claim with the

       Board, wherein he described his injury as follows:


               [Recker] was in intense training at [the] Fire Academy including
               daily cross fit workouts without rest in full fire gear. He began
               experiencing neck pain in April 2014. On morning of 5/17/14,
               he woke up with severe headache/neck pain/nausea and lost
               consciousness. At ER he was diagnosed with vertebral artery
               dissection with cerebral infarction.

       (App. 5). The gravamen of his claim was that his vertebral artery dissection and

       stroke were injuries caused by his fire department training.


[9]    A single hearing member heard Recker’s claim in January 2017. Two medical

       documents were admitted into evidence. The first document was a one-page

       letter from Dr. Bhat, which stated that Recker’s “right vertebral artery

       dissection [was] attributed to trauma of exercising with a helmet for a fire

       fighting drill and [was] unrelated to chiropractic adjustment on the thoracic

       spine.” (App. 38).


[10]   The second document was a ten-page report completed by Dr. Timothy Herron

       (“Dr. Herron”), who had performed an independent neurological evaluation on

       Recker. Dr. Herron’s report provides, in relevant part, as follows:


               Opinion: In my opinion, Mr. Recker’s right vertebral dissection
               and subsequent cerebellar stroke were spontaneous and not due
               to his training activities for the Ft. Wayne Fire Department in
               2014.


               Rationale: Vertebral artery dissection (VAD) is due to a tear of
               the inner wall of the vertebral artery. The term traumatic VAD is
       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 4 of 9
        used to describe dissection that occurs in the setting of significant
        blunt or penetrating trauma. Spontaneous VAD refers to those
        cases in which no significant trauma or traumatic event can be
        identified. Though spontaneous VAD occurs in the absence of
        any significant trauma, or identifiable trauma, patients may have
        a history of trivial or minor injury involving twisting or distortion
        movements of the cervical spine leading to neck pain, headache
        and subsequent dissection of the artery. As blood flows into the
        tear of the inner wall, a bulge forms causing partial or complete
        occlusion of the artery. This leads to a slowing of blood flow and
        the formation of blood clots that can propagate into brain tissue
        resulting in a stroke. VAD is usually an acute painful
        neurological event due to the tear in the wall of the artery and
        stroke symptoms that often follow. Stroke and neurological
        symptoms due to VAD usually occur[] acutely, within days, but
        cases have been reported in which neurological symptoms are
        delayed for longer periods of time.

        In Mr. Recker’s case, there is no history of any sudden, twisting
        or distortion movements of the cervical spine during his training
        at the Ft. Wayne Fire Dept. therefore there is no clear-cut
        mechanism linking his training to subsequent VAD.

        In my opinion, Mr. Recker’s right VAD more likely than not
        occurred on or about 5/17/14 at which time he presented acutely
        with the classic symptoms of VAD: severe headache,
        photophobia, neck pain, nausea, dizziness and difficulty
        swallowing. Though Mr. Recker reported to the ER physician
        on 5/17/14 that he had a several-week history of posterior right
        neck pain, there is no corroboration of this in the medical
        records. Specifically, [three] days earlier, on 5/14/14, Mr.
        Recker was seen by his primary care physician, Joseph Maddox,
        M.D., at which time there was no documentation of any neck
        pain, headache or other neurological symptoms. On 5/5/14 and
        4/30/14, Mr. Recker was seen at the BHS Clinic North and
        reported low back pain, but no neck pain, headaches or other
        neurological symptoms.

Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 5 of 9
               Approximately [three] weeks earlier on 4/15/14, Mr. Recker
               reported right shoulder pain, neck pain and stiffness to his
               chiropractor, Dr. Suciu, but there is no further documentation
               that this symptom was continuous or persistent prior to the time
               of his acute presentation 5/17/14.

               Because there is no documentation of any persistent neck pain,
               headaches or neurological symptoms following Mr. Recker’s
               training with the Ft. Wayne Fire Dept. terminating on 5/1/14, in
               my opinion, Mr. Recker’s right VAD and cerebellar stroke are
               not causally related to his training activities.

       (App. 39-48).


[11]   After hearing evidence, the single hearing officer denied Recker’s claim in a

       detailed order that provides, in relevant part, as follows:


               21. At least eighteen days elapsed between the last possible date
               of work-related physical activity and the acute onset of [Recker’s]
               neurological symptoms, and over three weeks elapsed between
               the last mention of [Recker’s] right shoulder pain in the medical
               records and the acute onset of his neurological symptoms.
               During the intervening time period, [Recker] was seen for low
               back pain or anxiety on three occasions without mention of neck
               or shoulder symptoms.


               22. In light of the delay between [Recker’s] employment activity
               and the acute onset of his neurological symptoms, [Recker’s]
               condition may have occurred spontaneously after his
               employment duties ended. Alternatively, [Recker’s] symptoms
               may have become discernible during the course of his
               employment without being caused by his employment. Here, the
               evidence most favorable to [Recker] is that his symptoms began
               during the course of training activity involving motion of the
               neck, but in the absence of traumatic event or unusual strain.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 6 of 9
                                        *       *        *       *        *


               24. The Board concludes by a preponderance of the evidence
               that [Recker’s] vertebral artery dissection and stroke did not arise
               out of his employment with [the City].


       (App. 9-10).


[12]   Recker filed an application for review by the full Board in March 2017. Five

       months later, in August 2017, the full Board issued an order affirming the single

       hearing officer’s denial of Recker’s claim. Recker now appeals.


                                                    Decision
[13]   Recker argues that the Board erred in denying his application for worker’s

       compensation benefits. Specifically, he contends that there is not substantial

       evidence supporting the Board’s conclusion that his vertebral artery dissection

       and stroke were not injuries arising out of his employment with the City.


[14]   The 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. Wright Tree Service v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct.

       App. 2009), trans. denied. In reviewing a worker’s compensation decision, we

       are 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. Id. 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

       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 7 of 9
       will not reweigh the evidence or reassess witness credibility. Id. As to the

       Board’s interpretation of the law, we employ a deferential standard of review of

       the interpretation of a statute by an administrative agency charged with its

       enforcement in light of its expertise in the given area. Id. The Board will only

       be reversed if it incorrectly interpreted the Worker’s Compensation Act (“the

       Act”). Id.


[15]   The Act requires employers to provide their employees with compensation for

       injury or death by accident arising out of and in the course of employment.

       IND. CODE § 22-3-2-2. An injury arises out of employment when a causal

       nexus exists between the injury sustained and the duties or services performed

       by the injured employee. Outlaw v. Erbick Prods. Co., Inc., 742 N.E.2d 526, 530

       (Ind. Ct. App. 2001), trans. denied. The nexus is established when a reasonably

       prudent person considers the injury to be born out of a risk incidental to the

       employment, or when the facts indicate a connection between the injury and

       the circumstances under which the employment occurs. Manous v.

       Manousogianakis, 824 N.E.2d 756, 763 (Ind. Ct. App. 2005). 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. Wright Tree Service, 907 N.E.2d at 186. The claimant bears the burden

       of proving his right to compensation. Id.


       Here, Recker contends that there is not substantial evidence supporting the

       Board’s conclusion that his vertebral artery dissection and stroke were not

       injuries arising out of his employment with the City. However, we agree with

       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 8 of 9
       the City that Recker’s argument “constitutes nothing more than a veiled

       attempt to ask this Court to reweigh the evidence and to find that the opinion of

       Dr. Bhat is more persuasive than that of Dr. Herron. This Court simply is not

       permitted to do so.” Appellee’s Br. at 12.


[16]   Rather, our review of the evidence reveals that Recker visited doctors and

       clinics from the end of April until the middle of May 2014. During those visits,

       the medical records reveal that Recker complained of back, groin, and knee

       pain. He also had panic attacks and anxiety. However, at no time did he

       report acute neurological symptoms such as dizziness, seizures,

       lightheadedness, or nausea. Recker also never reported any significant blunt or

       penetrating trauma during his time as a firefighter trainee. Eighteen days after

       he voluntarily quit the training program, Recker experienced a vertebral artery

       dissection and a stroke. Dr. Herron summarized this evidence in his report,

       which concluded that Recker’s vertebral artery dissection and stroke were not

       causally related to his training activities. This evidence is sufficient to support

       the Board’s conclusion that Recker’s vertebral dissection and stroke were not

       injuries arising out of his employment with the City. We therefore affirm the

       Board’s denial of Recker’s application for worker’s compensation benefits.


[17]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1708-EX-1973 | February 28, 2018   Page 9 of 9
