      MEMORANDUM DECISION                                                         Nov 30 2015, 8:48 am


      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.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      T. Reg Hesselgrave                                      Martin T. Spiegel
      Palguta & Hesselgrave                                   Spiegel & Cahill, P.C.
      Indianapolis, Indiana                                   Hinsdale, Illinois



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Janet Daugherty,                                        November 30, 2015
      Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                              93A02-1505-EX-393
              v.                                              Appeal from the Worker’s
                                                              Compensation Board of Indiana
      Dollar Tree Stores, Inc.,                               Application No. C-197818
      Appellee-Defendant.




      Bradford, Judge.



                                          Case Summary
[1]   Appellant-Plaintiff Janet Daugherty was an employee of Appellee-Defendant

      Dollar Tree Stores, Inc. On May 20, 2007, while she was working, Daugherty


      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015     Page 1 of 18
      fell from a ladder. In the years following the fall, Daugherty was treated for

      injuries to several different areas of her body. The Indiana Workers

      Compensation Board (“the Board”) found that Daugherty sustained

      compensable injuries to her left shoulder, left knee, and left upper extremity, but

      that her low back, cervical spine, right shoulder, and right knee conditions were

      not causally related to the work accident. The Board also denied Daugherty’s

      request for permanent total disability. On appeal, Daugherty argues that there

      was insufficient evidence to support the Board’s determinations. We affirm.



                            Facts and Procedural History
[2]   On May 20, 2007, while Daugherty was working at Dollar Tree, she fell from

      near the top of an eight-foot ladder. Over the subsequent seven years,

      Daugherty received treatment for several injuries, all of which she alleges were

      caused by the fall. On April 29, 2014, Daugherty’s worker’s compensation

      claim was heard by a single member of the Indiana Worker’s Compensation

      Board. On January 12, 2015, the single Board member found that Daugherty

      had sustained compensable injuries to her left shoulder, left knee and left upper

      extremity as a result of the accident, but that injuries to her lower back, cervical

      spine, right shoulder, and right knee were not causally related to the accident.

      The single Board member also found that Daugherty suffered twelve percent

      permanent impairment and that Daugherty was not entitled to recover costs for

      future medical care, nor was she entitled to permanent total disability.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 2 of 18
[3]   Daugherty appealed the single hearing member’s decision to the full Board. On

      April 22, 2015, the Board slightly modified Daugherty’s award, finding that she

      had suffered sixteen percent permanent impairment but affirming the single

      Board member’s conclusions in all other respects. The Board’s findings of fact

      and conclusions of law are as follows:


                                              Findings of Fact

          1. On or about May 20, 2007, Defendant employed Plaintiff at an average
              weekly wage of $403.18.

          2. On May 21, 2007, Plaintiff reported the following symptoms:

                            left knee pain and swelling
                            right wrist/forearm pain
              Plaintiff did not report other trauma, injuries or conditions on that date.

          3. Plaintiff was diagnosed with a left meniscal tear. On July 20, 2007, she
              underwent a partial medial meniscectomy at Central Indiana
              Orthopedics (“CIO”) and subsequently returned to work.

          4. On September 18, 2007, Plaintiff reported increased left elbow pain and
              numbness after returning to work following knee surgery.

          5. On October 31, 2007, Plaintiff was seen at CIO for left elbow pain. An
              EMG was positive for left carpal tunnel entrapment.

          6. On November 28, 2007, Dr. Chen saw Plaintiff for left elbow pain with
              EMG evidence of carpal tunnel syndrome. Clinical testing, however,
              was negative, and there was no evidence of cubital tunnel syndrome. Dr.
              Chen described Plaintiff symptoms as diffuse and difficult to correlate,
              and recommended that Plaintiff obtain another opinion from Dr.
              Heavilon.
      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 3 of 18
    7. On December 12, 2007, Plaintiff saw Dr. Heavilon, who suggested a
        carpal tunnel injection. Plaintiff expressed frustration and wanted to
        seek consultation with another practice. Dr. Heavilon wrote that a
        rapport had not been established with the patient, and recommended that
        another opinion be obtained.

    8. On January 15, 2008, Plaintiff was seen by Dr. Chen at CIO. Dr. Chen
        reported that carpal tunnel syndrome may have been responsible for part
        of Plaintiff’s symptoms, but that a carpal tunnel release would not
        provide relief. He kept her on restrictions of no lifting, pulling or pushing
        more than 10 pounds, and referred her to the Indiana Hand Center.

    9. On April 28, 2008, Plaintiff saw Dr. Macadaeg with neck pain and a
        secondary complaint of low back pain. This is the first notation of neck
        or back symptoms in Plaintiff’s medical records. Plaintiff told Dr.
        Macadaeg that her symptoms began about one year ago after falling. Dr.
        Macadaeg recommended physical therapy. Defendant’s claim
        representative was copied on Dr. Macadaeg’s note.

    10. Although Defendant was paid compensation for temporary disability for
        some periods of time, Plaintiff continued to work for Defendant
        intermittently.

    11. Plaintiff testified that she sustained subsequent injury to her left knee
        while working with a pallet jack in July or August of 2008.

    12. On August 19, 2008, Dr. Macadaeg noted Plaintiff’s report that her neck
        symptoms had worsened. A cervical MRI revealed multilevel
        degenerative changes, including cervical spondylosis with disc bulging.

    13. On August 29, 2008, Dr. Macadaeg recommended therapy and a
        possible injection. Dr. Macadaeg opined that Plaintiff’s cervical spine
        problems were not amenable to surgical intervention.

Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 4 of 18
    14. Plaintiff did not feel that her left knee improved after the left medial
        meniscectomy of July 20, 2007, so her care was transferred to Dr. Bicos.
        On January, 19, 2009, Dr. Bicos ordered an MRI, leading to a diagnosis
        of recurrent left medical meniscus tear, left knee patellofemoral catching,
        and lower extremity numbness and weakness. Dr. Bicos also noted that
        Plaintiff had an antalgic gait, a positive straight leg test for radicular pain,
        and a negative log roll sign for left hip pain. Dr. Bicos suggested
        evaluation by a spine physician for Plaintiff’s low back symptoms.

    15. On March 27, 2009. Dr. Bicos performed a left knee arthroscopy, partial
        medial meniscectomy and chondroplasty.

    16. On June 25, 2009, plaintiff consulted with Dr. Aitken at Rehabilitation
        Associates of Indiana. This referral was provided by Defendant.

    17. Plaintiff underwent physical therapy at First Choice, where, on
        September 11, 2009, the therapist noted that Plaintiff’s motivation was
        questionable.

    18. On September 14, 2009, Dr. Bicos reported that Plaintiff’s left knee
        condition was at maximum medical improvement. He imposed physical
        restrictions of no repetitive lifting, twisting or bending more than 15
        times per hour. He reported that Plaintiff’s left knee condition warranted
        a PPI rating of 8% to the left lower extremity or 3% to the whole person.

    19. Plaintiff’s treatment under the Act also included surgical repair of a left
        rotator cuff tear. On August 28, 2009, Dr. Kaplan reported that
        Plaintiff’s left shoulder condition had reached maximum medical
        improvement. Dr. Kaplan imposed permanent restrictions, including no
        use of the left arm above shoulder level.




Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 5 of 18
    20. On December 31, 2009, the Board approved a Section 15 compromise
        agreement with respect to Plaintiff’s left shoulder injury pursuant to
        which Defendant paid Plaintiff consideration of $6,850.00.

    21. On January 10, 2010, Dr. Aitken confirmed that Plaintiff’s left knee
        condition was at maximum medical improvement.

    22. On April 22, 2010, Plaintiff returned to Dr. Aitken for low back and left
        knee pain.

    23. On December 13, 2010, Plaintiff saw Dr. Gibson at the request of her
        attorney. Dr. Gibson reported that Plaintiff had a 7% PPI of the left
        lower extremity, and noted that Plaintiff needed additional care for her
        low back.

    24. Dr. Gibson noted Plaintiff’s reported history of low back and neck pain.
        Objectively, an MRI study dated November 26, 2010 demonstrated
        degenerative changes of the lumbar spine at L4-5, with bulging and
        compromise of the right nerve root. Notwithstanding the history
        reflected in Dr. Macadaeg’s April 2008 report, Dr. Gibson wrote “it may
        be somewhat difficult to completely connect her back troubles to the
        injury of May of 2007.”

    25. On December 16, 2010, Plaintiff saw Dr. Phookan for right lower
        extremity pain. She reported back pain, on and off, for almost three
        years. She reported the onset of leg symptoms starting a year before. Dr.
        Phookan diagnosed a right L4-5 herniation and L5 radiculopathy and
        recommended surgery.

    26. On January 10, 2011, Plaintiff underwent a right L4-5 microdiscectomy.

    27. On February 18, 2011, Dr. Phookan released Plaintiff with lifting
        restrictions for three months, after which she was to have no restrictions.


Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 6 of 18
    28. Plaintiff saw a family physician, Dr. Kohles, for multiple conditions. On
        May 13, 2011, Plaintiff reported right knee pain. Dr. Kohles
        recommended a right knee MRI.

    29. On July 7, Plaintiff returned to see Dr. Phookan with reports of left hip
        and left foot numbness. Dr. Phookan discussed a repeat lumbar MRI.

    30. On August 17, 2011, Plaintiff saw Dr. Sexson for right knee pain that she
        reported had been ongoing since 2007. Dr. Sexson suspected mild
        patellofemoral joint inflammation. Dr. Sexson did not believe Plaintiff
        had a meniscal tear and did not feel surgery was warranted.

    31. On September 9, 2011, Plaintiff saw Dr. Sorg at Community Spine, on
        referral from Dr. Kohles. Plaintiff reported that her low back pain had
        improved after the January 2011 surgery, but now reported new pain on
        the opposite side. Dr. Sorg recommended x-rays and physical therapy.

    32. On November 7, 2011, Dr. Sorg ordered an MRI, which showed
        postoperative changes, but no recurrent disc herniations.

    33. On January 20, 2014, Plaintiff was examined by Laura Holsey, D.O.,
        who opined the following diagnoses were related to the May 20, 2007
        incident:

             degenerative disc disease of the cervical spine with bulge and
              spurring at C3-4 and bulge and spurring at C4-5
             chronic headaches
             right and left shoulder pain, rotator cuff tears
             right bicipital tendinopathy from prior injury to the rotator cuff
              interval
             scarring of the biceps tendon
             small anterior osteophyte of the right shoulder
             right carpal tunnel syndrome


Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 7 of 18
             left carpal tunnel syndrome with surgical repair and positive EMG
              findings
             torn medial meniscus, left knee, status surgical repairs
             antalgic gait
             lumbar/SI pain with signs of lumbosacral radiculopathy
    34. Dr. Holsey reported that absent further treatment, Plaintiff would qualify
        for an 8% PPI to the cervical spine; 4% PPI to the right shoulder; 8% PPI
        to the left shoulder; an additional 9% PPI for left shoulder weakness; a
        20% PPI to the left upper extremity for loss of grip strength; a 20% PPI to
        the right upper extremity for loss of grip strength; a 7% impairment to the
        left lower extremity for the left knee surgery; and a 10% PPI for the low
        back. Dr. Holsey combined these losses for a PPI of 45% to the whole
        person.

    35. The Full Board does not give weight to the findings of Laura Holsey,
        D.O. with respect to PPI or to causation of the variety of conditions she
        attributes to the May 2007 incident. Some of these conditions did not
        arise or were not documented in the medical records until months or
        years after the work incident. Physicians such as Dr. Gibson, Dr. Sorg,
        Dr. Phookan and Dr. Aitken examined or treated Plaintiff prior to Dr.
        Holsey’s 2014 report, and in the Board’s view their notes does [sic] not
        establish a medical probability that many of the disputed conditions were
        work-related.

    36. Michael Blankenship, a vocation expert, reported that Plaintiff is unable
        to resume any reasonable employment. Without rejecting Blakenship’s
        findings on the vocational issue of disability, the Board rejects Plaintiff’s
        claim for permanent total disability on other grounds. For example,
        Plaintiff continued to work for periods of time after the May 2007 work



Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 8 of 18
        incident, and the Full Board does not find that all of Plaintiff’s disabling
        conditions are causally related to the May 2007 work incident.

    37. Plaintiff receives Social Security Disability payments with a disability
        date of May 1, 2011.

                                       Conclusions and Award

    1. Plaintiff sustained compensable injuries to her left shoulder, left knee,
        and left upper extremity in the May 2007 work incident.

    2. Plaintiff received compensation for periods of temporary total disability
        but also continued to work intermittently after the May 2007 work
        incident.

    3. The Full Board does not find by a preponderance of the testimony and
        evidence that the conditions of Plaintiff’s low back, cervical spine, right
        shoulder and right knee were causally related to the work accident.

    4. Pursuant to the discretion afforded by Ind. Code 22-3-3-10(i)(14), the
        Full Board awards to Plaintiff as against Defendant sixteen (16) degrees
        of permanent impairment for the left knee and left carpal tunnel injuries,
        without credit to Defendant for the $6,850.00 in consideration already
        paid for the left shoulder injury.

    5. Plaintiff is not awarded compensation for permanent total disability
        under the Act with respect to the May 2007 work incident. Plaintiff
        continued to work after the May 2007 incident. Plaintiff’s current
        disability status was caused in part by injuries or conditions the Board
        finds unrelated to the May 2007 work incident. The May 2007 work
        incident itself did not so devastate Plaintiff’s condition as to preclude her
        from reasonable employment in the competitive economy.



Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 9 of 18
          6. Plaintiff is not awarded palliative treatment for the compensable left
              shoulder, left carpal tunnel syndrome, or left knee injuries.

      Appellant’s App. pp. 1-6.



                                 Discussion and Decision
[4]   On appeal, Daugherty argues that (1) the Board’s decision was not supported

      by the evidence and (2) Dollar Tree had a duty to secure an affirmative

      statement from a doctor that her neck and low back problems were unrelated to

      the work injury.


          I. Sufficiency of the Evidence Supporting the Board’s
                                 Decision
[5]   Daugherty claims that the Board erred in finding that Daugherty’s low back,

      cervical spine, and right shoulder injuries were not causally connected to her

      workplace fall and in finding that Daugherty is not permanently totally disabled

      as a result of the fall.


                                      A. Standard of Review
[6]           An injury arises out of employment when there is a causal
              relationship between the employment and the injury. Muncie
              Indiana Transit Authority v. Smith, 743 N.E.2d 1214, 1216 (Ind.
              Ct. App. 2001). A causal relationship exists when the injury
              would not have occurred in the absence of the accident. See Daub
              v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994) (noting that in
              a negligence action, a causal connection exists when the harm
              would not have occurred “but for” the defendant’s conduct).
              The party seeking benefits bears the burden to prove that his or

      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 10 of 18
              her injury arose out of and in the course of employment. Conway
              ex rel. Conway v. School City of East Chicago, 734 N.E.2d 594, 598
              (Ind. Ct. App. 2000), trans. denied. Ultimately, the issue of
              whether an employee’s injury arose out of and in the course of
              his employment is a question of fact to be determined by the
              Board.


      Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 26 (Ind. Ct. App. 2002).


[7]   An unsuccessful claimant who seeks to challenge the denial of their application

      for benefits appeals from a negative judgment. Perez v. U. S. Steel Corp., 428

      N.E.2d 212, 216 (Ind. 1981). When reviewing a negative judgment issued by

      the Board,

              we will not weigh the evidence nor judge the credibility of
              witnesses. 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. Only if the evidence is of a character
              that reasonable men would be compelled to reach a conclusion
              contrary to the decision of the Board will it be overturned.


      Id. “Unless the evidence is ‘undisputed and leads inescapably’ to a result

      contrary to the Board’s finding, it will be affirmed.” Hill v. Worldmark

      Corp./Mid Am. Extrusions Corp., 651 N.E.2d 785, 787 (Ind. 1995) (quoting

      Rensing v. Ind. State Univ. Bd. of Trs., 444 N.E.2d 1170, 1172 (Ind. 1983)).


                                              B. Causation
[8]   Dr. Holsey concluded that, among other things, Daugherty’s low back, cervical

      spine, right knee, and right shoulder pain were caused by the work accident.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 11 of 18
      Daugherty argues that Dr. Holsey’s conclusions are decisive on the issue of

      causation because no other doctor rebutted these statements or otherwise

      opined that Daugherty’s injuries were not caused by the fall. However, the

      Board was not required to accept Dr. Holsey’s conclusions as credible.


              [A]n expert’s opinion may be so lacking in probative value as to
              be insufficient to prove the existence of a causal relationship. See
              [Daub v. Daub, 629 N.E.2d 873, 877 (Ind. Ct. App. 1994)]. While
              the admissibility of an expert’s opinion does not require the
              expert to couch an opinion in terms of a particular level of
              certainty, an opinion regarding causation that lacks reasonable
              certainty or probability is insufficient by itself to support a
              judgment. Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d
              722, 731 (Ind. 1982)…. Ultimately, the Board is free to accept or
              reject expert testimony. Hill, 651 N.E.2d at 787.


      Outlaw, 777 N.E.2d at 29.


[9]   The Board clearly explained why it did not give weight to Dr. Holsey’s

      conclusions.

              The Full Board does not give weight to the findings of Laura
              Holsey, D.O. with respect to PPI or to causation of the variety of
              conditions she attributes to the May 2007 incident. Some of
              these conditions did not arise or were not documented in the
              medical records until months or years after the work incident.
              Physicians such as Dr. Gibson, Dr. Sorg, Dr. Phookan and Dr.
              Aitken examined or treated Plaintiff prior to Dr. Holsey’s 2014
              report, and in the Board’s view their notes does [sic] not establish
              a medical probability that many of the disputed conditions were
              work-related.




      Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 12 of 18
       Appellant’s App. p. 5. Dr. Holsey did not examine Daugherty until January

       20, 2014, nearly seven years after the accident. As such, it was reasonable for

       the Board to give more weight to the records of the treating physicians than to

       Dr. Holsey’s conclusions. Furthermore, as stated above, we do not reweigh the

       evidence or judge the credibility of witnesses. Perez, 428 N.E.2d at 216.


[10]   The following evidence supports the Board’s decision that Daugherty’s low

       back, cervical spine, right knee, and right shoulder injuries were not causally

       connected to her workplace fall: (1) Daugherty first complained of low back

       pain on April 28, 2008, approximately one year after her accident; (2) on April

       22, 2010, Daugherty again complained of low back pain which she said had

       been bothering her for “the past couple of months,” tr. vol. II, p. 3, (3) on

       November 26, 2010, Dr. Gibson opined that “it may be somewhat difficult to

       completely connect her back troubles to the injury of May of 2007,” appellant’s

       app. p. 4; (4) Daugherty’s first complaint of right knee pain was documented by

       Dr. Kohles on May 13, 2011, at which time she indicated that she had been

       experiencing right knee pain for a week; (5) on July 11, 2007, Daugherty saw

       Dr. Marshall Trusler for her left knee pain and Dr. Trusler conducted right

       knee, left knee, and head and neck examinations and found that “[t]here is

       normal motion in the right knee. No swelling….No tenderness….Normal

       strength in the right lower extremity,” and no issues with the head or neck, ex.

       vol. III, p. 8; (6) Daugherty’s first complaint of neck pain was documented

       November 16, 2007; and (7) there is no record of right shoulder pain until

       January 20, 2014.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 13 of 18
[11]   Daugherty testified that she did notify her doctors of her neck and back pain

       shortly after the accident but that the doctors decided to focus on her more

       severe injuries (her left knee and left shoulder) before addressing her back and

       neck issues. Daugherty does not explain why the doctors’ notes do not reflect

       that she complained of back or neck pain.


               When a conflict in the evidence arises we will consider only the
               evidence tending to support the Board’s award and which is most
               favorable to the appellee. Given substantial evidence supporting
               its determination, the Board’s ultimate factual conclusion must
               be upheld although this Court might have reached another had it
               been the trier of fact.


       Tanglewood Trace v. Long, 715 N.E.2d 410, 412 (Ind. Ct. App. 1999) (quoting

       Grand Lodge Free & Accepted Masons v. Jones, 590 N.E.2d 653 (Ind. Ct. App.

       1992)).


[12]   Daugherty also testified that she now suffers from nearly constant and

       debilitating neck and low back pain. However, in August of 2008, when she

       was examined following her initial cervical MRI, Dr. Daniel Harris described

       Daugherty’s cervical spine condition as “relatively mild,” appellant’s app. p. 43,

       and Dr. Macadaeg described Daugherty as being in “no apparent distress,” that

       her “[n]eck range of motion [was] full,” that her “muscle strength [was] 5/5,”

       that physical work restrictions were unnecessary, that she was not at risk of

       further injury, and he recommended a “conservative approach” to treat her

       pain. Appellant’s App. p. 41.



       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 14 of 18
[13]   Ultimately, the Board had substantial evidence to support its conclusion that

       Daugherty failed to prove by preponderance of the evidence that her low back,

       spine, right knee, and right shoulder conditions were not causally related to the

       work accident. Daugherty is correct that there is evidence supporting an

       inference that her injuries were caused by her work accident; however, that fact

       does not negate the evidence in favor of the Board’s decision. Daugherty’s

       argument is essentially a request for this court to reweigh the evidence, which

       we will not do. Perez, 428 N.E.2d at 216


                                 C. Permanent Total Disability
[14]   To establish “permanent total disability,” a claimant must establish that they

       “cannot obtain or perform ‘reasonable’ types of employment” for the remainder

       of their life. Walker v. State, Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 265

       (Ind. 1998) (citing Perez, 428 N.E.2d at 215-16).


[15]   With regards to permanent total disability, the Board found as follows,

               Michael Blankenship, a vocational expert, reported that Plaintiff
               is unable to resume any reasonable employment. Without
               rejecting Blakenship’s findings on the vocational issue of
               disability, the Board rejects Plaintiff’s claim for permanent total
               disability on other grounds. For example, Plaintiff continued to
               work for periods of time after the May 2007 work incident, and
               the Full Board does not find that all of Plaintiff’s disabling
               conditions are causally related to the May 2007 work incident.
                                                      ***
               Plaintiff is not awarded compensation for permanent total
               disability under the Act with respect to the May 2007 work
               incident. Plaintiff continued to work after the May 2007
       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 15 of 18
               incident. Plaintiff’s current disability status was caused in part by
               injuries or conditions the Board finds unrelated to the May 2007
               work incident. The May 2007 work incident itself did not so
               devastate Plaintiff’s condition as to preclude her from reasonable
               employment in the competitive economy.
       Appellant’s App. pp. 5-6.


[16]   The Board’s conclusion was based on reasonable inferences from evidence in

       the record. Following the May 2007 injury, Daugherty continued to work for

       Dollar Tree with moderate lifting restrictions until she was fired on September

       9, 2009. Daugherty admitted that while working at Dollar Tree following the

       May 2007 accident, she regularly exceeded her lifting restrictions. Daugherty

       also did not begin receiving Social Security Disability benefits until May 1,

       2011. In light of the fact that Daugherty was able to continue her work at

       Dollar Tree following the accident for nearly two-and-a-half years with only

       moderate and intermittent restrictions, we find that there was substantial

       evidence to support the Board’s determination that “[Daugherty’s] current

       disability status was caused in part by injuries or conditions the Board finds

       unrelated to the May 2007 work incident,” and that “[t]he May 2007 work

       incident itself did not so devastate Plaintiff’s condition as to preclude her from

       reasonable employment in the competitive economy.” Appellant’s App. p. 6.

       As such, the Board did not abuse its discretion by denying Daugherty’s request

       for permanent total disability benefits.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 16 of 18
                II. Employer’s Duty to Treat Potential Injuries
[17]   Finally, Daugherty argues that following Dr. Macadaeg’s August 29, 2008

       recommendations to treat her neck pain, Dollar Tree had a duty to

       expeditiously follow up with the recommended treatments or secure an

       affirmative statement from a physician that Daugherty’s neck and low back

       issues were not causally related to the work injury. Daugherty contends that

       the Board’s finding that Dollar Tree was not responsible for her back and neck

       injuries works to “defeat the Act’s humanitarian purposes by lengthening

       proceedings, delaying treatment, and increasing costs which are not reimbursed

       by the Act.” Appellant’s Br. p. 20.


[18]   First, Daugherty claims that “Dollar Tree refuse[d] to provide any further care

       and treatments of the low back or of the neck” after Dr. Macadaeg’s August

       2008 treatment recommendations. Appellant’s App. p. 4. However, Daugherty

       cites no evidence in the record to suggest that Dollar Tree disallowed

       Daugherty to pursue further treatment for her neck or low back; rather, there is

       simply no mention of Daugherty complaining of low back or neck pain again

       until almost two years later in April of 2010. In fact, Dr. Macadaeg instructed

       Daugherty to “follow up with [him] on an as needed basis.” Appellant’s App.

       p. 39.


[19]   Moreover, Daugherty cites no authority to support her argument that Dollar

       Tree has a duty to disprove causation as a result of failing to pay for the

       treatment of injuries that are not clearly a result of the workplace accident.


       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 17 of 18
       Accordingly, we find that the Board did not err in declining to find that Dollar

       Tree had a duty to provide treatment for injuries which were not clearly

       causally connected to Daugherty’s fall.


[20]   The judgment of the Board is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1505-EX-393 | November 30, 2015   Page 18 of 18
