ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
MICHAEL PATRICK DUGAN BART COLOMB
DOUGLAS W. MEAGHER New Albany, Indiana
Riley Bennett & Egloff, LLP
THE PILLSBURY COMPANY, ) ) Appellant-Defendant, ) ) vs. ) No. 93A02-0211-EX-924 ) REBECCA OSBORNE, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
A. Finding No. 3
The Boards third finding is: Osbornes injury resulted in a C6-7 disc herniation, disc derangement at C3-4, C4-5, C5-6. (App. at 4.) This finding is supported by evidence.
Dr. Lehmann stated that Osbornes [h]erniated nucleus pulposus at C6-7 and degenerated disc at C4-5 were the direct result of the October 1997 injury. ( Id. at 176-77.) Dr. Holts notes indicated Osborne had a workers compensation injury in October 1997 and symptoms have been present since. (Id. at 297.) He concluded based on an MRI done on November 18, 1999 that Osborne has a cervical herniated disc at C3-4. (Id. at 298.)
B. Finding No. 9
The Boards ninth finding provides:
Dr. Lehmann diagnosed herniated nucleus pulposus C6-7 and degenerative disc disease at C4-5 which was causally related to Osbornes work related injury on October 30, 1997. Dr. Lehmann assessed Osbornes permanent impairment at 20% to the body as a whole. Dr. Lehmann restricted Osborne from all overhead work and lifting above shoulder height. Also, Dr. Lehmann imposed a lifting restriction of 20 pounds.
(Id. at 5.)
Pillsbury argues this finding is misleading because it incorrectly states Osbornes level of impairment. Because Dr. Lehmann indicated Osborne had an additional 20% impairment of her body as a result of her October 1997 injury, (id. at 258) (emphasis supplied), Pillsbury argues Osborne had physical impairment beyond that caused by the work injury. (Br. of Appellant at 16.)
Impairment in the context of workers compensation refers to a loss of a physical function. White v. Woolery Stone Co., Inc., 181 Ind. App. 532, 396 N.E.2d 137, 139 (1979). Osborne had various complaints of pain before and after her prior neck surgeries. However, there is no evidence those complaints reflected her impairment. In fact, Osborne usually worked twelve to sixteen hours of overtime each week while at Pillsbury. The Board could have reasonably inferred from this information that Osborne had no pre-injury impairments or that they were negligible. There is evidence to support this finding and the uncontradicted evidence does not unerringly lead to a contrary finding.
C. Finding No. 10
The Boards tenth finding is: Dr. Lehmann recommended that Osborne apply for Social Security Disability because she could not work. He stated that Osbornes complaints of pain were genuine and that is it possible for a post-surgical patient to have continued complaints of pain with no objective evidence of recurrent herniation or neurological deficit. (App. at 5.)
Pillsbury attacks the implication of the first sentence of this finding. Although conceding Dr. Lehmann and Osborne discussed whether Osborne should apply for Social Security Benefits in December 1998, Pillsbury contends the discussion occurred because Osborne insisted she could not work, not because Dr. Lehmann believed she could not work. However, Pillsbury asserts, the fact that Dr. Lehmann discussed Social Security benefits with Osborne does not necessarily imply he believed she could not work.
Dr. Lehmann testified there was no objective medical reason why Osborne could not return to work but added that Osbornes complaints of pain . . . would make it difficult for her to return to work. ( Id. at 184.) Dr. Conte, who reviewed Dr. Lehmanns records as part of his vocational evaluation of Osborne, noted that when a patient says she cannot work, a physician will typically recommend the patient seek Social Security disability benefits. (Id. at 237.) The following exchange then occurred:
[Counsel for Osborne]: All right. Assuming that he did make such a recommendation [that Osborne seek Social Security disability benefits], do you know why Dr. Lehmann would make that type of recommendation if he thought Ms. Osborne was capable of working?
[Dr. Conte]: Quite simply I do the same thing. Anyone that comes to me and says, I cant work anymore, then I say, Well, here are the disability benefits that youre entitled to, and send them off to whatever source that they feel is appropriate to apply to.
(Id. at 237-38.) Dr. Contes testimony indicates a physician may advise a patient to apply for disability benefits for reasons other than his own belief the patient is unable to work. This finding is supported by evidence.
D. Finding No. 11
The Boards eleventh finding is: Osborne filed the medical records of Dr. Richard T. Holt on February 18, 2000. Dr. Holts records reflect that Osborne currently suffers from a disc herniation at the C3-4 level. Dr. Holt stated that Osborne should not return to production work. (Id. at 5.) Pillsbury takes issue with the last sentence of this finding as being incomplete and misleading.
Dr. Holts complete statement was: In my opinion, she will never return to a heavy manual laboring job such as a production worker at Pillsbury. (Id. at 298) (emphasis supplied). Finding No. 11 is an incomplete and misleading characterization of what Dr. Holt said. However, Dr. Conte testified that Dr. Holt advised against repetitive and production work, adding that certainly makes sense given [Osbornes] history and surgical treatment. (Id. at 240.) Moore indicated that despite Dr. Lehmanns restrictions, Osborne would be able to perform unskilled sedentary and unskilled light work, but advised against Osborne performing assembly line work. (Id. at 147.)
Although this finding misstates Dr. Holts conclusion, other evidence supports the recommendation that Osborne not return to production work.
E. Finding No. 12
The Boards twelfth finding is: Defendant filed the medical records of Dr. James McKiernan on April 19, 2000. Dr. McKiernan diagnosed muscle contraction headaches/chronic daily headaches which he indicated were causally related to Osbornes neck problems. Dr. McKiernan prescribed Buspar for the headaches. (Id. at 5.)
Pillsbury argues that because Osborne had an extensive history of neck problems predating October 1997, the Full Board could not reasonably draw an inference . . . that the headaches were connected solely to the October 1997 injury. (Br. of Appellant at 17.) Dr. McKiernans report states Osbornes headaches are most consistent with so-called muscle contraction headaches or chronic daily headaches. Likely this is related to her past neck problems. (App. at 305.) Pillsbury argues past neck problems refers to Osbornes neck problems before October 1997.
Dr. Lehmanns records indicate Osborne had pain in the top of her head prior to her surgery in 1998. The records note she had no headache from then until October 30, 1997, although she still had pain in her neck and shoulders. ( Id. at 254.) Osbornes testimony also indicates her headaches began the morning after the accident. (Id. at 76.) As a result of this evidence, the Board could have reasonably inferred that Osbornes headaches were related solely to the October 1997 injury. There is evidence to support this finding.
F. Finding No. 16
The Boards sixteenth finding is: Dr. Conte acknowledged that Osborne returned to work after each of her four surgeries and that overwork led to an increase in her symptoms that eventually caused her to discontinue working on December 19, 1998. (Id. at 6.)
Pillsbury argues this finding wrongly suggests that Dr. Conte believed that overwork led to Employee Osbornes inability to work beginning in December 19, 1998, when in fact he believed that Employee Osborne could work normal hours in a less strenuous position. (Br. of Appellant at 17-18.) This argument fails at the outset because a belief that overwork may have increased Osbornes symptoms is not, as Pillsbury suggests, necessarily inconsistent with a belief that Osborne could work normal hours in a less strenuous position.
Dr. Contes report indicates a probable overwork situation rather than a change in medical status caused Osborne to stop working. (App. at 248.) During his deposition, Dr. Conte stated:
I believe anyone in this room who worked 60 See footnote hours of overtime in a physically demanding repetitive job probably would have had some difficulty with it . . . So its, I think, pretty reasonable to conclude that there are going to be some subjective complaints [of pain] as a result of that.
(Id. at 237) (footnote added). Dr. Conte also testified that Osborne has a capacity to perform work in a wide variety of . . . lighter and sedentary jobs. (Id. at 221.) This finding is supported by evidence and is not internally contradictory.
2. Evidence of Pre-Existing Impairments
Pillsbury argues the Board erred when it failed to consider uncontradicted evidence about Osbornes previous surgeries and the effect of those surgeries on her current impairment. The evidence indicates Osborne complained of pain after her previous surgeries but her pain had not prevented her from working. Only after the October 1997 injury, the April 1998 surgery, and two months at work did Osbornes pain increase to a level that prevented her from working. The Board, in its role as fact-finder, did not err in giving less weight to or disregarding evidence regarding Osbornes previous surgeries and the effect of those surgeries.
3. Date of Award
The Hearing Members award, which was affirmed by the Board, dates Osbornes permanent total disability to October 1997. This is, as Pillsbury notes, clearly erroneous. Although Osborne was injured in October 1997, her injury did not progress to permanent total disability until December 1998. See Bogdon v. Ramada Inn, Inc., 415 N.E.2d 767, 770 (Ind. Ct. App. 1981) (holding time for notice to be given to employer begins to run when disability, not injury, occurs). There, we noted [n]ot all injuries are subject to immediate detection or sudden disability; some are progressive in nature . . . The fact that [an employee] continues to work and refuses to succumb to aches and pains until his condition progresses to a state of disability is no reason to penalize him. Accordingly, we remand for correction of this error.
4. Support for Conclusions
Pillsbury argues the Boards second conclusion of law lacks factual basis, contradicts a factual finding, and impermissibly ignores evidence, and that [t]his flawed conclusion necessarily undermines the third conclusion of law that Osborne was totally permanently disabled. (Br. of Appellant at 21.) After determining that the findings are supported by sufficient evidence, we examine the findings to see if they are sufficient to support the decision. Shultz Timber, 751 N.E.2d at 836.
The Boards second conclusion is: Various physicians, including Osbornes treating physician, Dr. Lehmann, and Defendants evaluating physician, Dr. McKiernan, have concluded her chronic pain and muscle contractions are related to her neck injury and related to her work at Pillsbury. (App. at 6.)
While the Boards conclusion is not a model of drafting precision, See footnote the following findings support the Boards conclusion that Osbornes chronic pain and muscle contractions are related to her neck injury and to her work at Pillsbury. Finding No. 12 indicates Osbornes contraction headaches and chronic daily headaches are related to her neck problems. Finding No. 9 indicates Osbornes neck injury resulted from her work at Pillsbury. Finding No. 8 indicates she had surgery for her neck injury and that her headaches continued after the surgery. These findings are sufficient to support Conclusion No. 2.
Pillsbury contends this conclusion contradicts Finding No. 14, which states: Due to Osbornes chronic pain syndrome from her multiple surgeries, Ms. Moore is of the opinion that [Osborne] is now permanently and totally disabled. Ms. Moore stated that Osborne was credible and that her complaints of pain are genuine. ( Id. at 6.) Pillsbury asserts Finding No. 14 and Conclusion No. 2 cannot be reconciled. (Br. of Appellant at 20.) However, Finding No. 14 does not indicate the Board found Osbornes multiple neck surgeries resulted in chronic pain and disability. Rather the Board found that Moore based her conclusion of permanent total disability on Osbornes chronic pain from multiple surgeries. This finding is not inconsistent with Conclusion No. 2. See Ellis v. Hubbell Metals, Inc., 174 Ind. App. 86, 89, 366 N.E.2d 207, 209, (1977) (boards acknowledgement of plaintiffs testimony that he injured his back while performing his job in the normal manner was not inconsistent with boards finding that any temporary total disability and medical expense incurred by plaintiff were due to causes unrelated to his employment).
Conclusion No. 3 states: Osbornes neck injury and her resulting chronic pain renders her permanently totally disabled. (App. at 6.) Finding No. 14 and Conclusion No. 2 support this conclusion.
5. Necessity of Apportionment
Pillsbury argues the Board erred as a matter of law when it failed to apportion the award of total permanent disability between Osbornes pre-existing impairments and her work-injury impairments.
Ind. Code § 22-3-3-12 controls when apportionment between pre-existing impairments and work-injury impairments is required:
If an employee has sustained a permanent injury either in another employment, or from other cause or causes than the employment in which he received a subsequent permanent injury by accident, such as specified in section 31, he shall be entitled to compensation for the subsequent permanent injury in the same amount as if the previous injury had not occurred: Provided, however, [t]hat if the permanent injury for which compensation is claimed, results only in the aggravation or increase of a previously sustained permanent injury or physical condition, regardless of the source or cause of such previously sustained injury or physical condition, the board shall determine the extent of the previously sustained permanent injury or physical condition, as well as the extent of the aggravation or increase resulting from the subsequent permanent injury, and shall award compensation only for that part of such injury, or physical condition resulting from the subsequent permanent injury. Provided further, however, [t]hat amputation of any part of the body or loss of any or all of the vision of one or both eyes shall be considered as a permanent injury or physical condition.
In U.S. Steel Corp. v. Spencer, 655 N.E.2d 1243, 1248 (Ind. Ct. App. 1995), trans. denied, we held that apportionment is not always required when the employee has a pre-existing condition. We noted the statute describes three scenarios regarding pre-existing and work-injury impairments: 1) work-injury impairments that merely combine with pre-existing conditions to result in disability; 2) work-injury impairments that are merely aggravations of pre-existing conditions; and 3) work-injury impairments which occur, perhaps to physically imperfect employees, solely from events at the current employers workplace. Id. The first two scenarios result in application of the apportionment statute while the third does not. Id.
Although Osborne may have been more susceptible to neck injuries than a physically perfect employee, her pre-existing conditions were not significant impairments. Finding No. 13 notes Osbornes very consistent work history despite four surgeries. (App. at 6.) Finding No. 15 indicates Osborne has no significant gaps in her employment history and has a good work record. ( Id.) Those findings and Osbornes testimony indicate she was able to work without restriction before the October 1997 injury, despite having had three neck surgeries. Osborne also worked between twelve and sixteen hours of overtime each week while employed with Pillsbury. Only after the October 1997 injury and subsequent surgery did Osborne become unable to work. See Spencer, 655 N.E.2d at 1248 (that Spencer was able to work at hard arduous labor for ten years following his previous injury supported the conclusion that the current injury and not a pre-existing impairment rendered him disabled).
Neither the Boards findings nor its conclusions indicate the Board found Osbornes total permanent disability was due to a pre-existing impairment. Because the evidence in the record does not unerringly lead to the conclusion that Osborne had a pre-existing impairment, the Board could have reasonably determined Osbornes impairments were related solely to the October 1997 injury. The Board was not required to apportion the award.
6. Clarification of Medical Expenses Award
The parties agree that the Boards award of all statutory medical expenses, (App. at 29), requires remand for clarification as to which medical expenses are included. We agree.