Eric Keith v. Indiana Bell

• Court: Indiana Court of Appeals
• Decided: March 6, 2014
• Docket: 93A02-1308-EX-758
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral Mar 06 2014, 9:15 am estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

HEATHER FALKS BRIDGET A. ZEIER T. REG HESSELGRAVE MARTIN T. SPIEGEL Palguta Falks & Hesselgrave Spiegel & Cahill P.C. Indianapolis, Indiana Hinsdale, Illinois

IN THE COURT OF APPEALS OF INDIANA

ERIC KEITH, ) ) Appellant/Plaintiff, ) ) vs. ) No. 93A02-1308-EX-758 ) INDIANA BELL, ) ) Appellee/Defendant. )

APPEAL FROM THE FULL WORKER’S COMPENSATION BOARD OF INDIANA Application No. C-206899

March 6, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge Case Summary

Eric Keith appeals the Worker’s Compensation Board’s (“the Board”) decision that

he was not entitled to additional benefits under the Indiana Worker’s Compensation Act.

He contends that the Board’s determination that he was not permanently and totally

disabled was unsupported by the evidence. Finding that the Board’s determination was

supported by the evidence, we affirm.

Facts and Procedural History

Keith was working as a connection technician in October 2008 for Indiana Bell.

One of its customers in Centerton, Indiana, did not have internet service. Because the

house had old wiring, Keith needed to go into a crawl space to retrieve a wire. After

retrieving the wire, he attempted to exit the crawl space on his back. As he was trying to

exit, he “felt something, like somebody shot [him] in the back with a red hot poker. [He]

felt a lightning strike down [his] leg.” Tr. p. 8. He then rolled over and tried to pull himself

out of the crawl space. As he did so, he “felt a loud pop in [his] lower back.” Id. Keith

was eventually able to retrieve his cell phone and called a co-worker, who called 911. Keith

was removed from the area on a stretcher.

As a result of his injuries, Keith sought treatment from Dr. Derron Wilson, Dr.

Michael Burt, and Dr. Eric Potts.1 Keith had several surgeries to correct the problem in his

back. In February 2009, he had surgery to remove a herniated disk on the right side of his

spine at L4-5 and L5-S1. Two months later, Keith had another surgery to remove a

herniated disk at T8-9 on the right portion of his spine. In October 2009, a single lead

1 Dr. Burt and Dr. Potts have since retired. Tr. p. 15. 2 spinal stimulator was implanted in Keith’s back, resulting in a ninety-percent improvement

during the trial period. Appellant’s App. p. 2. One month later, a spinal-cord stimulator

was permanently implanted. Dr. Wilson placed Keith on maximum medical improvement

in December 2009.

Indiana Bell then requested that Keith see Dr. Rick Sasso. Dr. Sasso found no

evidence of ongoing neurologic abnormalities and recommended that Keith should

“progress his activities as tolerated including a return to gainful employment . . . .” Tr. p.

36. However, Dr. Sasso noted that he believed Keith would have significant limitations

due to subjective pain complaints. Id.

Keith disagreed with Dr. Sasso’s assessment and requested a Worker’s-

Compensation-Board-appointed Independent Medical Evaluation. Appellant’s App. p. 2.

The Board-appointed Independent Medical Evaluation was performed by Dr. John Shay.

Dr. Shay diagnosed Keith with chronic thoracic syndrome and chronic lumbar radicular

syndrome. Dr. Shay concluded that Keith should be reevaluated by a qualified physician

to determine whether any adjustment of his spinal-cord stimulator would be appropriate

and to provide a permanent impairment rating. Tr. p 32-33; Appellant’s App. p. 2.

Dr. Wilson provided the recommended follow-up care and determined that Keith

was at maximum medical improvement in October 2011. He also referred Keith to Dr.

Nancy Lipson, a board-certified physical medicine and rehabilitation specialist, to provide

a permanent partial impairment rating.

Dr. Lipson concluded that “[Keith] is not capable of returning to medium or heavy

work. . . . I believe the most that he should be expected to lift would be 15 pounds on a

3 very occasional basis.” Tr. p. 38. Moreover, she concluded that any work he could do

would involve sitting most of the time. She further concluded that “[h]e should not have

to do any significant bending, reaching with his right arm, crouching, crawling, ladders or

other unprotected heights.” Id. According to Dr. Lipson, “[o]n a frequent basis, I would

feel that he could handle at most five pounds and this should preferably be sitting without

his arms outstretched in front of him and without doing side-to-side motions.” Id.

Dr. Lipson also determined an appropriate impairment rating for Keith. Because of

his severe pain, right-leg weakness, and need for long-term pain medications and a spinal

-cord stimulator, she determined that Keith has a thirty-percent whole-person impairment.

Id. She also determined that Keith was at maximum medical improvement.

Keith then requested to see Michael Blankenship, a vocational rehabilitation

specialist. Blankenship, who is not a doctor, interviewed Keith to determine his ability to

engage in reasonable employment. Before the interview, Blankenship only reviewed the

opinion of Dr. Lipson and did not review any other medical information. Id. at 24. Based

on his interview with Keith and Dr. Lipson’s medical opinion, Blankenship concluded that

“Keith is obviously an individual who has developed marketable skills but the severity of

his medical conditions is such that he has been precluded from competing for any type of

position defined by the U.S. Department of Labor.” Id. at 26. Specifically, Blankenship

concluded that, “[w]hile it may appear that he has the capacity to perform sedentary types

of employment, it is my opinion that he could not sustain himself during an eight hour work

day.” Id.

4 As a result of these assessments, Keith was paid $480.75 per week in temporary

total disability benefits from November 2008 to December 2011. The total amount he was

paid during this period was $71,631.75. Appellant’s App. p. 2.

Keith filed an application for an adjustment of claim with the Indiana Worker’s

Compensation Board. In February 2013, Hearing Member Krysten LeFavour heard

Keith’s claim. At the hearing, Keith used a cane to walk and frequently changed positions

in his chair. He explained that he had not looked for employment because he could only

work for one or two hours before having to lie down. Moreover, he could only sit for forty-

five minutes at a time, stand for one hour with a cane, walk one block, and lift fifty pounds

at a time. Appellant’s App. p. 5, Tr. p. 13.2 On cross-examination, Keith admitted that no

doctors had given him documentation stating that he should not work. Tr. p. 18.

Regarding his marketable skills, Keith explained that he had graduated high school

and completed fifty-two hours of college credit in biology, zoology, and anthropology.

Additionally, he has a certificate of completion from Ivy Tech Community College in body

and mechanical work.

Based upon Dr. Lipson’s evaluation of Keith, Board Member LeFavour determined

that Keith had sustained a thirty-percent whole-person impairment. She also concluded

that Keith had not met his burden in proving that he is permanently and totally disabled.

In reaching this determination, she discounted Blankenship’s opinion “because of the

inaccurate history he was given and the fact that he did not review all of the pertinent

2 Although in his brief, Keith states that he was limited to lifting fifteen pounds, the Worker’s Compensation Board’s findings state that he claimed he could only lift fifty pounds at a time. Appellant’s App. p. 5. 5 medical information.” Appellant’s App. p. 6. Instead, she concluded that Keith is

“articulate and intelligent and the evidence shows that he is able to engage in light and/or

sedentary work.” Id.

Member LeFavour also determined that Keith had reached maximum medical

improvement and is entitled to temporary total disability through November 2011 at a rate

of $480.75 per week, which he had already been paid. She also determined that Keith was

entitled to total disability for approximately six weeks after his reversion surgery for the

spinal-cord stimulator. As a result of Keith’s thirty-percent permanent partial impairment,

she concluded that he was entitled to an additional award of $45,050.

In June 2013, the Board affirmed Board Member LeFavour’s award and adopted

her findings and denial of permanent total disability with one member dissenting. Id. at 8-

9.

Keith now appeals.

Discussion and Decision

Keith argues that the Board’s determination that he is not permanently and totally

disabled is unsupported by the evidence.3 When reviewing the decision of the Worker’s

Compensation Board, we review the Board’s decision “to determine whether substantial

evidence, together with any reasonable inferences that flow from such evidence, supports

the Board’s findings and conclusions.” Young v. Marling, 900 N.E.2d 30, 34 (Ind. Ct. App.

2009). We do not reweigh the evidence or judge the credibility of witnesses. Id. In

3 Keith also argues that the Board made no finding of fact regarding his ability to find reasonable employment. Appellant’s Reply Br. p. 10. However, in its Conclusions, the Board states that “the evidence shows that he is able to engage in light/sedentary work.” Appellant’s App. p. 6. This statement is a specific finding revealing the Board’s determination that Keith was able to find reasonable employment. 6 evaluating the Board’s decision, we employ a two-tiered standard of review. Wholesalers,

Inc. v. Hobson, 874 N.E.2d 622, 627 (Ind. Ct. App. 2007). First, we review the record to

determine if there is any competent evidence of probative value to support the Board’s

findings. Id. We then examine the findings to see if they are sufficient to support the

decision. Id.

To establish a total disability, an injured employee must prove that he cannot carry

on reasonable types of employment. Perez v. U.S. Steel Corp., 428 N.E.2d 212, 215-16

(Ind. 1981). The reasonableness of the type of employment is determined by assessing the

individual’s “physical and mental fitness for [the opportunities] and by their availability.”

Id. Here, Keith bore the burden of proving that he cannot carry on reasonable types of

employment to justify recovery for a permanent total disability. See id. “Once plaintiff

has established the degree of physical impairment, coupled with other facts such as the

claimant’s capacity, education, training, or age, and has established that she has attempted

unsuccessfully to find work or that it would be futile to search for work in light of her

impairment and other characteristics, the burden of producing evidence that reasonable

employment is regularly and continuously available then rests on the employer.” Walker

v. State, Muscatatuck State Dev. Ctr., 694 N.E.2d 258, 265 (Ind. 1998).

Keith maintains that the Board should have awarded him permanent and total

disability benefits. Essentially, Keith argues that the totality of the evidence relied upon

by the Board does not support its conclusion. He maintains that the Board should have

awarded him permanent and total disability benefits based upon: 1) the vocational expert’s

testimony stating he is unable to work; 2) the medical opinion of Dr. Lipson; and 3) Keith’s

7 testimony that he cannot work. Further, Keith argues that, having met his burden of proof,

the burden should shift to Indiana Bell to present evidence “that reasonable employment is

regularly and continuously available.” See id. He further contends that because Indiana

Bell did not challenge Blankenship’s testimony and because Dr. Lipson was the only

physical medicine rehabilitation specialist that examined him, the Board should have

afforded their opinions greater weight. Indiana Bell argues that the evidence supports the

Board’s conclusion that Keith is not totally and permanently disabled.

Keith has not sought employment since the accident. But he maintains that the

totality of evidence shows that no reasonable employment exists as a matter of law. See

id. at 265 (holding plaintiff has burden to show that she has attempted unsuccessfully to

find work or that it would be futile to search for work in light of her impairment and other

characteristics). In support of that contention, he states that he is fifty years old; has a

history in medium to heavy work; cannot return to his previous job or work of similar

capacity; is limited to lifting fifty pounds occasionally and should not lift more than ten

pounds; should not bend, reach, crouch, or twist; needs to change positions every half hour

and can only stand for a limited amount of time; and he feels he can only work for one or

two hours before lying down. Appellant’s Br. p. 10-11; Appellant’s App. p. 5.

But the evidence shows that Keith is a high-school graduate; has taken fifty-two

credit hours of college courses in biology, zoology, and anthropology; can lift up to a total

of fifty pounds; and is able to drive independently. Indeed, Dr. Lipson was asked to give

an impairment rating and concluded that he had a partial impairment rating of thirty

percent. Moreover, none of the doctors who examined Keith stated that he was unable to

8 work. In fact, Dr. Sasso concluded that “he is able to return to gainful employment.” Tr.

p. 34.

This case is distinguishable from Walker. Although Walker had only a permanent

partial impairment rating of twenty percent and had similar lifting restrictions, she was

significantly less educated. She had only an eighth-grade education and read at the level

of a seventh grader. Walker, 694 N.E.2d at 260. Moreover, in Walker, the vocational

expert’s opinion was not discounted. In that case, the vocational expert stated that Walker

“had trouble urinating, dressing herself, making the bed, and running a vacuum cleaner.

[Walker] told [the vocational expert] that she could not stand more than ten minutes

without experiencing pain in her back and right leg, and could not sit for more than several

minutes.” Id. at 262. Even if the Board had not discounted Blankenship’s report, Keith

did not complain of similar types of limitations to Blankenship. Finally, in Walker an

occupational therapist stated that “locating gainful employment within the limitations

[Walker] demonstrated during this evaluation would be very difficult.” Id. at 263. No

doctor who evaluated Keith made a similar conclusion.

Keith also argues that the board “apparently relied heavily on Dr. Sasso’s reports

without any specific finding on why the report should control . . . .” Appellant’s Br. p. 9.

He also argues that Blankenship’s report should not have been discounted because the

inaccurate history Blankenship was given and the fact that he did not review all of the

pertinent medical evidence is not material to Blankenship’s conclusions. These arguments

are simply a request to reweigh the evidence, which we may not do.

9 We conclude that Keith has not demonstrated that it would be futile to search for

work in light of his impairment. We also conclude that there was competent evidence to

support the Board’s findings and that the findings were sufficient to support the decision.

Affirmed.

RILEY, J., and MAY, J., concur.