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.




Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017       Page 1 of 15
                                          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


      Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 2 of 15
      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.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017           Page 3 of 15
      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
      Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 4 of 15
        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

Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 5 of 15
        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
Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 6 of 15
        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

Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 7 of 15
              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

      Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 8 of 15
               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

       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 9 of 15
       “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.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 10 of 15
             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

       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 11 of 15
               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.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 12 of 15
[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.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 13 of 15
         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



       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 14 of 15
       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.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1607-EX-1645 | April 11, 2017   Page 15 of 15
