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Ward v. Lowe's

Court of Appeals of Indiana

May 9, 2017

Matthew Ward, Appellant-Plaintiff,
v.
Lowe's, Appellee-Defendant.

         Appeal 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

          Bradford, Judge.

         Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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[1] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         Discussion and Decision

         [¶8] 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.

         [¶9] 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 ...


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