Albright v. Four Winds International

950 N.E.2d 1251, 2011 Ind. App. LEXIS 1057, 2011 WL 2321411
CourtIndiana Court of Appeals
DecidedJune 13, 2011
Docket93A02-1010-EX-1324
StatusPublished
Cited by2 cases

This text of 950 N.E.2d 1251 (Albright v. Four Winds International) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albright v. Four Winds International, 950 N.E.2d 1251, 2011 Ind. App. LEXIS 1057, 2011 WL 2321411 (Ind. Ct. App. 2011).

Opinion

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Yvette Albright appeals the decision of the full Worker’s Compensation Board (the “Board”) affirming the decision of a single hearing member, who had concluded that Albright’s employer, Four Winds International (“Four Winds”), is not responsible *1253 for providing prescription Cymbalta to Al-bright. Albright presents the following issues for review:

1. Whether the Board abused its discretion when it allowed evidence to be submitted to the Board that had not been before the single hearing member.
2. Whether the Board erred when it denied Albright’s Application for Adjustment of Claim.

We reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

Albright was employed by Four Winds to wire recreational vehicles. In performing her duties, Albright lay on a creeper and worked overhead. In 2005 she developed neck pain and hand numbness and was subsequently diagnosed with a right C7-T1 herniated disc with right C8 radicu-lopathy. To treat the condition, Dr. Robert A. Yount performed a discectomy and cervical fusion on January 11, 2006. On June 20, 2006, Dr. Yount gave Albright an 18% permanent partial impairment of the body as a whole. He also noted that she had some “persistent weakness in her hand and some dysesthetic pain.” Appellant’s App. at 73.

Based on Albright’s injury, on December 19, 2006, Albright and Four Winds entered into an Agreement to Compensation of Employee and Employer (“Agreement”) “in regards to compensation for the injury sustained by [Albright.]” 1 Appel-lee’s App. at 5. The Agreement lists “[c]er-vical herniation” as the nature of the injury. Id. Also pursuant to the Agreement, Four Winds accepted Albright’s 18% whole person impairment rating and compensated her $25,000.

On January 15, 2007, Albright saw her primary care physician, Dr. Elizabeth Weston. In her notes regarding “history of present illness,” Dr. Weston stated that it had been “years since [Albright] ha[d] had a physical exam or a Pap smear[,]” that she had not yet had a mammogram, and that she “recently underwent spinal surgery but [was] otherwise in good health.” Appellant’s App. at 51. Under “assessment” Dr. Weston listed “1. health maintenance^] 2. normal pelvic exam[;] 8. paresthesias [; 2 ] 4. tobacco use[; and] 5. hematuria.” Id. 51-52 (emphasis added). And under “plan” the doctor stated, in relevant part: “Recommended increasing Cymbalta from 80 to 60 mg. She was given samples today. I told her the higher doses should control the paresthesias much better. We could also consider using Lyrica for that in the future.” 3 Id. at 52.

In May 2007, Dr. Weston wrote on a prescription pad that Albright “might need Cymbalta (or Lyrica or other similar meds for paresthesias) for the next 20+ years.” Id. at 52A. On October 11, Dr. Weston examined Albright “for followup of her paresthesias” and noted: “She has been on Cymbalta which has recently been in *1254 creased to 60 mg b.i.d. 4 She had been sleeping well at night with this medication but still has significant pain during the day. This increase already seems to be helping. She still does a lot of her activities left-handed due to weakness that will be permanent in the right hand.” Id. at 53. Dr. Weston’s plan at the conclusion of that exam was to “[c]ontinue Cymbalta 60 mg b.i.d. If she has no side effects but does not have significant decrease of her symptoms, then we will increase to 90 mg b.i.d.” Id.

On May 18, 2008, Albright had an office visit with Dr. Weston. Dr. Weston’s notes indicate that Albright was there

for follow up of her anxiety and depression. She is doing very well on Cymbal-ta 60 mg [b.i.d.]. She is still having some slight fatigue. She has a history of elevated glucose, but denies any polydipsia, polyuria, or polyphagia. She is having her menstrual cycle occur every 17 days with bleeding for 5-7 days. She has had this now for the past 2 months. She is due for a Pap smear. She is uncertain of when her mom went through menopause.

Id. at 55. Under “assessment,” Dr. Weston listed menometrorrhagia, anxiety and depression, and fatigue.

On July 18, 2008, Albright filed an Application for Adjustment of Claim (“Claim”). The Claim lists that her injury arose from “[r]epetitive work [that] resulted in a disc herniation which required surgery,” and she requested a hearing “[t]o finalize settlement of future medical expense issues.” Appellee’s App. at 3. As part of an independent medical review for Four Winds, Dr. David S. Poder examined Albright’s medical records in January 2009. Based on that review Dr. Poder issued a written report, which provides in relevant part:

1. Based on a review of the medical records provided, is the proposed treatment consisting of the medication Cym-balta 60 mg twice a day appropriate and medically necessary for this diagnosis and clinical findings? Yes or no? Please explain. If so, for how long?
Determination: Yes. Based on a review of the medical records provided, the proposed treatment consisting of the medication Cymbalta 60 mg twice a day is appropriate and medically necessary for this diagnosis and clinical findings for two months.
Rationale Supporting Determination: According to the Official Disability Guidelines, Cymbalta, also known as du-loxetine, is “recommended as an option in the first line of treatment for neuro-pathic pain. Cymbalta is a norepineph-rine and serotonin reuptake inhibitor antidepressant. It has FDA approval for the treatment of depression, generalized anxiety disorder, and for the treatment of pain related to diabetic neuropathy, with the effects found to be significant by the end of week one. A starting dose of 20 to 60 mg per day had no advantage, as had been found by increasing the dose to twice a day, except in fibro-myalgia. The medication has been found to be effective for treating fibro-myalgia in women with and without depression, 60 mg once or twice a day.”
Based on the medical records from Dr. Weston, it would appear that Cymbalta is helping this patient with neuropathic pain and depression associated with chronic pain. Therefore, I recommend authorization of its continued use for two *1255 months, at which time Dr. Weston should submit a more detailed report indicating exactly how much pain relief this patient has with Cymbalta. In addition, it would be appropriate to document the patient’s improvement in quality of life and functional restoration with the use of this medication before its continued use could be considered necessary.
la. If medically necessary, in your opinion, would the proposed treatment cure or relieve the effects of the industrial injury? If no, please explain.

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Bluebook (online)
950 N.E.2d 1251, 2011 Ind. App. LEXIS 1057, 2011 WL 2321411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albright-v-four-winds-international-indctapp-2011.