from the Indiana Worker's Compensation Board Application
No. C-217099 Linda Peterson Hamilton, Chairperson
Attorneys for Appellant Brandon E. Hall John H. Shean Shean
Law Offices Bloomington, Indiana
Attorneys for Appellee Kristen K. Rollison Charles J. Maiers
Due Doyle Fanning & Alderfer, LLP Indianapolis, Indiana
Appellant-Petitioner Matthew Ward applied for worker's
compensation benefits, claiming that pulmonary embolisms
("PEs") he experienced in 2012 were caused by a
work injury he suffered in 2010 while working for
Appellee-Respondent Lowe's. Although Ward supported his
application with the opinion of a medical doctor, the Indiana
Worker's Compensation Board ("the Board")
denied Ward's application. Ward now appeals, contending
that the Board abused its discretion in denying his
application. Because we disagree, we affirm.
and Procedural History
In 1995, Ward had surgery on his left leg for multiple
fractures after he was struck by a car, and the trauma caused
varicose veins and some venous insufficiency in the lower
leg. On July 6, 2010, Ward was working at the Lowe's
store in Bloomington when he lost his footing, spraining his
left ankle and fracturing the large toe on his left foot.
Ward was directed by a doctor to wear a CAM ("Controlled
Ankle Movement") walking boot to immobilize the foot and
ankle and to elevate the injury. Ward was examined on July
14, 2010, and the examining physician concluded that
Ward's varicose veins in his left leg put him at elevated
risk of deep vein thrombosis ("DVT") in the area.
Immobilization is a known cause of DVT, which "can
certainly lead to the development of pulmonary emboli."
Appellant's App. Vol. II p. 143. Lowe's accepted
Ward's injury as compensable and provided Ward with
statutory medical care through the end of 2010.
Meanwhile, on July 31, 2010, Ward arrived at the Bloomington
Hospital Emergency Room complaining of chest pain. Ward's
examination revealed "a large amount of embolic material
with the pulmonary arteries consistent with [a] large amount
of bilateral pulmonary embolus" and DVT in his lower
left leg, likely secondary to his toe fracture.
Appellant's App. Vol. II p. 68. Ward was prescribed
Coumadin (an anti-coagulant) to treat his PEs. On August 11,
2010, Ward was examined and continued on a CAM walker, with
the examining physician opining that "[h]is toe should
essentially be healed at this point." Appellant's
App. Vol. II p. 75.
On October 13, 2010, Dr. Russell Dukes examined Ward and
noted improvement in Ward's PEs. On December 20, 2010,
Dr. Mark Hansen opined that Ward could return to work with no
restrictions and evaluated him to have a zero-impairment
rating for both his left ankle and left large toe. On January
24, 2011, Dr. Dukes evaluated a CT scan of Ward's chest
which was performed and concluded that "[t]here is no
evidence for acute pulmonary emboli. There has been
resolution of the extensive pulmonary emboli compared with
the 07/31/2010 examination and now with only a thin linear
filling defect within the descending right pulmonary artery
likely representing residual scar/fibrotic change or minimal
chronic embolus at this location." Appellant's App.
Vol. II p. 104. Ward took Coumadin for approximately six to
seven months before discontinuing in March of 2011. A May 26,
2012, medical report indicated that "[t]he patient was
on Warfarin until March of 2011 but discontinued when
the clots in the lungs were gone, even though the patient
still had [a] number [of] clots in the left lower
extremity." Appellant's App. Vol. II p. 114-15.
In December of 2011, Ward left Lowe's employ and moved to
Chicago, taking a job through a temporary agency doing
construction and various other physical labor at a Wal-Mart
store. Ward described the work at Wal-Mart as "very
[labor] intensive." Appellee's App. Vol. II p. 3-4.
On May 26, 2012, Ward was stocking water jugs in the store
when he began experiencing chest pain and shortness of
breath. Ward was diagnosed with "acute to subacute left
PE" and DVT, and it was concluded that "[the
p]atient will require lifelong anticoagulation[.]"
Appellant's App. Vol. II p. 108.
In September 2012, Ward filed an application for adjustment
of claim with the Board. Dr. Robert Gregori conducted an
independent medical examination of Ward, which entailed
interviewing him, examining him, and reviewing his medical
records. Dr. Gregori acknowledged that Ward is
"significantly deconditioned" and "obese,
" Appellant's App. Vol. II p. 145, but concluded
that most of the medical treatment Ward had received since
the 2010 work injury, including the treatment for the May of
2012 episode, was a result of that injury. Dr. Gregori also
calculated "a 23% whole person impairment as a result of
the DVT and pulmonary emboli related to his work
injury." Appellant's App. Vol. II p. 146.
In October 2015, Krysten LeFavour, a member of the Board,
held a hearing on Ward's application. LeFavour concluded
that Ward had failed to show that the May 2012 episode
"was caused by his work accident." Appellant's
App. Vol. II p. 12. LeFavour concluded that "[i]t is
more likely that Plaintiff's condition in 2012 was
related to either an idiopathic aggravation of his condition
and/or his extensive physical labor at his job in 2012."
Appellant's App. Vol. II p. 12. Ward then asked the full
Board to review Hearing Member LeFavour's decision. After
a hearing, the Board adopted LeFavour's decision as its
own, adding that "Dr. Gregori's report dated June
24, 2014, is not sufficient to support Plaintiff's burden
of proof that the incident in May of 2012 is causally
connected to Plaintiff's work accident."
Appellant's App. Vol. II p. 6. Ward argues that the
uncontroverted medical opinion evidence he presented in the
form of Dr. Gregori's report compels reasonable people to
reach a conclusion contrary to the Board's.
The Worker's Compensation Act requires employers to
provide their employees with "compensation for personal
injury or death by accident arising out of and in the course
of the employment[.]" Ind. Code § 22-3-2-2(a). An
accident occurs in the course of employment "when it
takes place within the period of employment, at a place where
the employee may reasonably be, and while the employee is
fulfilling the duties of employment or while engaged in doing
something incidental thereto." Pavese v. Cleaning
Sols., 894 N.E.2d 570, 575 (Ind.Ct.App. 2008). An injury
arises out of employment when a causal nexus exists between
the injury sustained and the duties or services performed by
the employee. Id.
Ward contends that the Board erred by denying his application
for benefits. Because Ward had the burden of proving his
entitlement to such benefits, he is essentially appealing
from a negative judgment, which we will reverse only if the
evidence is such that reasonable people would be compelled to
reach a contrary conclusion. Outlaw v. Erbrich Prods.
Co., 777 N.E.2d 14, 26 (Ind.Ct.App. 2002), trans.
denied. We will not weigh the evidence nor judge the
credibility of witnesses. Id. "Rather, we
examine the record only to determine whether there is ...