ATTORNEY FOR APPELLANT:
MARK D. GERTH
Kightlinger & Gray
COURT OF APPEALS OF INDIANA
MUNCIE INDIANA TRANSIT )
vs. ) No. 93A02-0008-EX-536
MICHAEL B. SMITH,
G. Terrence Coriden, Chairman Workers Compensation Board of Indiana
APPEAL FROM THE INDIANA WORKERS COMPENSATION BOARD
Application No. C-140777
March 2, 2001
OPINION - FOR PUBLICATION
Muncie Indiana Transit System (Transit System) appeals from a decision of the full
Workers Compensation Board (the Board) affirming the single hearing officers decision that Michael
Smith suffered injuries arising out of and in the course of his employment
with Transit Authority. Specifically, Transit Authority argues that the Boards decision is
erroneous because there is insufficient evidence that Smiths carpal tunnel syndrome arose out
of Smiths employment. Because we find that Smiths testimony standing alone is
insufficient to prove that Smiths job as a bus driver caused the carpal
tunnel syndrome, we reverse the Boards decision.
Facts and Procedural History
Smith became a Transit Authority bus driver in 1982. In 1991, Smith
contacted neurologist Dr. John Wulff (Dr. Wulff) regarding his writers tremor. Record
at 73. Smith returned to Dr. Wulff in August 1994. During
the consultation, Smith told the doctor that his hand tremors had gotten worse.
Smith also complained of numbness of his hands and feet, and a
decrease of strength in his right hand. Smith further told Dr. Wulff
that he was exposed to Agent Orange in Vietnam.
Following the consultation, Dr. Wulff summarized as follows in his written report: [I]t
appears that this patient is developing a sensory polyneuropathy. Etiology of this
is unknown. It has been reported before with Agent Orange, but also
other systemic disorders can also cause a sensory neuropathy. Record at 74.
Dr. Wulff recommended an electromyogram (EMG) of Smiths upper and lower extremities.
Following the EMG, Dr. Wulff reported as follows:
CLINICAL PROBLEM: History of evidence of peripheral neuropathy. Also has intermittent numbness of
hands consistent with carpal tunnel syndrome. . . .
IMPRESSION: This is a mildly abnormal EMG with nerve conduction velocity study because of
borderline prolongation of the right median midpalmar sensory stimulation. These findings can
be seen with . . . carpal tunnel syndrome. Further clinical correlation
of these findings is recommended.
Record at 75. Smith consulted with Dr. Wulff every two to three
months for follow-up evaluations. In September 1994, Dr. Wulff again noted evidence
of carpal tunnel syndrome.
In May 1996, Smith consulted with Dr. Patrick Murray, an orthopedic surgeon, who
diagnosed Smith as suffering from both peripheral neuropathy and bilateral carpal tunnel syndrome.
Dr. Murray recommended that Smith undergo surgery for the carpal tunnel syndrome,
and Smith agreed to the procedure. When Smith advised his employer of
the surgery, Transit Authority told Smith to apply for short-term disability benefits.
Smith applied for the benefits; however, the short-term disability insurer denied his claim
and advised him to file a workers compensation claim. Smith submitted a
workers compensation claim, which was also denied. Thereafter, Smith filed an Application
for Adjustment of Claim with the Board.
Smiths medical records were admitted into evidence at a hearing before a single
hearing officer. None of the records contained an opinion as to the
cause of Smiths carpal tunnel syndrome. Also at the hearing, Smith, the
sole witness, testified that his job as a bus driver with the vibrations,
the constant having to grip the steering wheel caused the carpal tunnel syndrome.
No other evidence regarding causation was presented. Following the hearing, the
hearing officer concluded that although there was no medical evidence directly connecting [Smiths]
carpal tunnel syndrome to his work as a bus driver, Smiths carpal tunnel
syndrome was an injury, which arose out of and in the course of
Smiths employment with Transit Authority. Record at 4. In adopting the
hearing officers decision, the Board explained as follows:
While there is no medical opinion directly connecting [Smiths] carpal tunnel syndrome to
his work as a bus driver, this Hearing Member attributes this to [Smiths]
difficulty in accurately relating his relevant work history to his physicians. Also,
no physician found [Smiths] work, as a bus driver, did
not cause his
carpal tunnel syndrome. . . .
Record at 21. Transit Authority now appeals.
Discussion and Decision
At the outset we note that Smith has failed to file an appellees
brief. When an appellee fails to submit a brief in accordance with
our rules, we need not undertake the burden of developing an argument for
the appellee. Robinson v. Valladares, 738 N.E.2d 278, 280 (Ind. Ct. App.
2000). Rather, Indiana courts have long applied a less stringent standard of
review with respect to showings of reversible error when an appellee fails to
file a brief. Id. Thus, we may reverse if the appellant
is able to show prima facie error. Id. In this context,
prima facie is defined as at first sight, on first appearance, or on
the face of it. Id. (citing Johnson County Rural Elec. Membership Corp.
v. Burnell, 484 N.E.2d 989, 991 (Ind. Ct. App. 1985)).
The Indiana Workers Compensation Act (the Act) provides compensation to employees who suffer
injuries which arise out of and in the course of their employment.
Tanglewood Trace v. Long, 715 N.E.2d 410, 413 (Ind. Ct. App. 1999), rehg
denied, trans. denied. To be eligible for compensation under the Act, the
employee must prove that the injury arose out of and in the course
of his employment. Id. The phrase in the course of employment
refers to the time, place and circumstances of the accident. Id.
The phrase arose out of the employment refers to the origin and cause
of the injury. Id. In order for an accident to arise
out of employment, there must be a causal relationship between the employment and
the injury. Id.
As a general rule, the issue of whether an employees injury arose out
of and in the course of his employment is a question of fact
to be determined by the Board. Ind. Mi. Power Co. v. Roush,
706 N.E.2d 1110, 1113 (Ind. Ct. App. 1999), rehg denied, trans. denied.
However, when the facts relating to the question of liability under the Act
are undisputed and lead to only one reasonable inference, the determination of whether
an injury arose out of or in the course of employment is a
question of law. Id. We may reverse the Boards decision on
a question of law if the undisputed evidence reveals that the Boards decision
is an incorrect interpretation of law. Id
Transit Authority claims that the Boards decision is contrary to law because it
is based solely on Smiths testimony and is not supported by medical evidence
which shows a causal relationship between Smiths employment and his carpal tunnel syndrome.
Transit authority has not provided this court with citation to Indiana case law
or statute as to what constitutes competent evidence for determining causation in workers
compensation cases when the injury was not caused by a sudden and unexpected
event, and our research reveals none. We therefore look to our sister
states for guidance.
In Alabama, the totality of evidence, including both lay and expert testimony, may
satisfy a showing that exposure to a work related risk or danger was
a contributing cause of the injury for which benefits are sought. See
Clanton v. Hudson Foods, Inc., 594 So. 2d 141, 143 (Ala. Civ. App.
1991), rehg denied, cert. denied. However, a well-settled rule in Arizona provides
that where the result of an accident is not one which is clearly
apparent to a layman, the physical condition of an injured employee after an
accident and the causal relation of the accident to such condition must be
determined by expert medical testimony. Eldorado Ins. Co. v. Indus. Commn,
558 P.2d 32, 35 (Az. Ct. App. 1976). According to the Arizona
Court of Appeals, the obvious reason for this rule is that lay persons
are no better able to testify concerning the functioning of the human body
than they are to treat its infirmities. Id. at 35. The
court further explained that although most lay persons have opinions and theories of
their own as to how the human body functions, our courts have decided
that, in order to recover compensation, a standard of expert evidence on the
subject is required where the injury is not apparent to the layman.
We conclude that where, as here, the injury was not caused by a
sudden and unexpected external event, both lay and expert evidence are admissible to
show the injuries arose out of and in the course of the employees
employment. Further, when the cause of the injury is not one which
is apparent to a lay person and multiple factors may have contributed to
causation, expert evidence on the subject is required.
Here, our review of the record reveals that although Smith testified that his
employment as a bus driver caused his carpal tunnel syndrome, none of Smiths
medical records contained an opinion as to the cause of Smiths condition.
Smith was the only witness, and no other evidence of causation was introduced.
Because there are many causes of carpal tunnel syndrome, and Smith has
a prior history of hand numbness, which may be linked to his exposure
to Agent Orange in Vietnam, expert testimony on the cause of Smiths carpal
tunnel syndrome was required. Smiths failure to introduce such testimony is fatal
to his claim.
Here, Smiths testimony standing alone is insufficient to support the Boards determination that
Smiths carpal tunnel syndrome arose out of his employment. The Boards
decision is contrary to law and therefore erroneous.
NAJAM, J., and KIRSCH, J., concur.
Transit Authority also argues that Smiths claim is barred by the
statute of limitations. Because we reverse on the causation issue, we need
not address the statute of limitations issue.
This evidentiary requirement is similar to the Indiana rule in negligence
cases which requires the plaintiff to prove a reasonable connection between his damages
and the defendants conduct. See Roberson v. Hicks, 694 N.E.2d 1161, 1163
(Ind. Ct. App. 1998), trans. denied. Specifically, the plaintiff must show that
the harm would not have occurred but for the defendants conduct. Id.
When an injury is objective in nature, the plaintiff is competent to
testify as to the injury and such testimony may be sufficient for the
jury to render a verdict without medical testimony. Id. See also
Ind. Evidence Rule 701. However, when the issue of cause is not
within the understanding of a lay person, expert witness testimony on the issue
is necessary. Id. See also Ind. Evidence Rule 702.