K-Mart Corp. v. Morrison, K-MART

Docket NºK-MART
Citation609 N.E.2d 17
Case DateFebruary 24, 1993
CourtCourt of Appeals of Indiana

Page 17

609 N.E.2d 17
K-MART CORPORATION, Appellant-Defendant,
v.
Jo Ann MORRISON, Appellee-Plaintiff.
No. 93A02-9204-EX-172.
Court of Appeals of Indiana,
Third District.
Feb. 24, 1993.
Transfer Denied May 21, 1993.

Page 21

Douglas F. Stevenson, Chicago, for appellant-defendant.

Timothy J. Walsh, South Bend, for appellee-plaintiff.

GARRARD, Judge.

This is an appeal from an award of the Worker's Compensation Board in favor of Jo Ann Morrison.

FACTS AND PROCEDURAL HISTORY:

Jo Ann Morrison ("Morrison") was involved in a work related accident on October 9, 1986, at the K-Mart store in Warsaw, Indiana. Morrison was working in the apparel stockroom when approximately 15 boxes of clothing fell and struck her on the head, shoulder, neck, back and leg. After receiving initial medical attention, Morrison sought additional treatment from a K-Mart doctor and was referred to Dr. Schneider by her immediate supervisor, Chris Owens. After this, Morrison stated that she wanted to see another doctor and, because she knew that K-Mart had to direct where she went, sought approval from Owens. Owens approved Dr. Rose, an orthopedist, and Morrison continued treatment. Several other doctors were also consulted with K-Mart's approval but with little improvement in Morrison's overall condition. Finally, on the recommendation of a friend and without K-Mart's prior knowledge, Morrison went to see Dr. Johnson, an orthopedist in Indianapolis. Dr. Johnson was of the opinion that Morrison might be suffering from Reflex Sympathetic Dystrophy (RSD), a little known but potentially debilitating condition affecting the sympathetic nervous system. After this visit, Morrison informed Owens of the visit and testified at the hearing that Owens said "he understood" and that she "could do what had to be done." Dr. Johnson gave Morrison medical leave slips that she turned in to K-Mart. Up to this point K-Mart had paid all medical bills submitted to it by Morrison.

In March, 1988, Morrison took a leave of absence from working at K-Mart. She did, however, continue to work as needed at her husband's towing business, answering the phone and handling advertising for several hours, four or five days a week.

In April, 1988, Morrison stopped seeing Dr. Johnson and apparently went without medical attention until August 28, 1988. At that time Morrison went to see Dr. Edwards, an anesthesiologist and professional advisor to the RSD Association. Dr. Edwards was recommended to her by a friend and Morrison made an appointment with him after attending a lecture that he had given. Dr. Johnson later wrote a letter of referral to Dr. Edwards at Morrison's request. Dr. Edwards diagnosed Morrison as suffering from RSD and treated her using stellate blocks and medication. During this period Morrison submitted many of her medical bills to Blue Cross Blue Shield, K-Mart's insurance carrier for employee health benefits. Additionally, Morrison drew 26 weeks of disability benefits under K-Mart's Wage Protection plan from March, 1988 through September 13, 1988.

On January 16, 1989, Dr. Edwards released Morrison to return to work subject to three conditions: (1) she could lift no more than 10 pounds in weight, (2) she could not lift anything above shoulder level, and (3) she could not climb any ladders until further notice. On February 13, 1989, K-Mart responded by offering Morrison a job at the jewelry counter that met these qualifications and gave Morrison her schedule for the following week. Morrison, however, did not take the job, informing someone at K-Mart that the jewelry counter

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was close to the doors and that she was sensitive to cold. K-Mart then terminated Morrison based on her refusal to return from her leave of absence.

In May, 1990, Morrison stopped seeing Dr. Edwards and has apparently received no medical care on a consistent basis since that time. In February, 1990, Morrison was referred by Dr. Edwards to Dr. Stanton-Hicks, an anesthesiologist, a member of the board of directors of the RSD Association, and a subspecialist in RSD. Dr. Hicks saw Morrison only once, but, after examining her and performing an evaluatory stellate block, diagnosed Morrison with RSD. Finally, in January of 1991 Dr. Edwards performed an infrared thermogram, a kind of heat photography, on Morrison which both Dr. Edwards and Dr. Hicks stated confirmed Morrison's diagnosis of RSD.

On April 2, 1987, Morrison filed her application for worker's compensation benefits and on April 9, 1991, a hearing was held before a single member of the Worker's Compensation Board (Board). The single member entered findings of fact and conclusions of law on October 5, 1991, and awarded Morrison 11- 4/7 weeks of temporary total disability benefits at the rate of $97.33 per week, 500 weeks of permanent total disability at the rate of $75.00 per week, over $9,000.00 in medical expenses, and all statutory medical and hospital services and supplies as necessary to reduce or limit Morrison's permanent partial impairment. On request by Morrison's attorney, the single member corrected the award to reflect 500 weeks at the rate of $97.33 per week instead of the previous award of $75.00 per week. K-Mart appealed this corrected award to the full Board which affirmed the single member and reversed only as to the 11- 4/7 weeks of temporary total disability.

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

ISSUES:

K-Mart presents seven issues for review which we restate as follows:

I. Whether infrared thermography is admissible evidence in Indiana (a) under the test set forth in Frye v. United States (1923), D.C.Cir., 293 F. 1013, and (b) in proceedings before the Worker's Compensation Board.

II. Whether there was sufficient evidence to support the Board's finding that Morrison suffered from RSD.

III. Whether there was sufficient evidence of the permanent or quiescent nature of Morrison's condition to support the Board's finding that Morrison was permanently totally disabled within the meaning of the Worker's Compensation Act.

IV. Whether Morrison justifiably refused a job offered to her by K-Mart that met restrictions set out in a work release authorized by Dr. Edwards.

V. Whether the Board erred in awarding Morrison over $9,000.00 in medical expenses.

VI. Whether the Board erred by failing to credit K-Mart with 26 weeks of disability payments paid to Morrison by Aetna, K-Mart's disability insurance carrier.

VII. Whether the single member erred in reopening the award of permanent total disability and adjusting the amount of compensation from $75.00 per week to $97.33 per week.

DISCUSSION:

Issue I:

K-Mart first challenges the admissibility of infrared thermography in Indiana (a) under the test set forth in Frye v. United States (1923), D.C.Cir., 293 F. 1013, and (b), if not admissible under Frye, would relaxed evidentiary standards allow its admission in proceedings before the Worker's Compensation Board. 1

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Thermography is a fairly recent development in the medical field. It is essentially "heat photography" which purportedly provides an objective means of measuring soft-tissue injuries and pain. See Ferlise v. Eilor (1985), 202 N.J.Super. 330, 495 A.2d 129, 130. The procedure measures differential skin temperature by recording the infrared light emitted by the body. The infrared temperature readings are then computerized graphically and depicted on a television screen. Injuries which result in inflammation, such as sprains and strains to muscles, cause dilation of the blood vessels in the involved area, resulting in the appearance of a warm spot which is recorded by the thermogram machine. Id. 2

Dr. Edwards performed an infrared thermogram on Morrison in January of 1991 which was received into evidence before the Board. The Board found the evidence admissible: "Concluding that the thermogram has some reasonable degree of recognition and acceptability among the medical community, and in light of the relaxed rules of evidence, which the Worker's Compensation Board of Indiana now tends to allow, this relevant new scientific device is determined to be admissible." We disagree with the Board and in light of the following analysis we find that infrared thermography is inadmissible in Indiana.

A. Admissibility of Infrared Thermography Under Frye.

Whether infrared thermography is admissible evidence in our courts is a question of first impression. In determining whether novel scientific evidence should be admissible in Indiana, our supreme court has consistently used a test put forth by the District of Colombia Court of Appeals in Frye v. United States (1923), D.C.Cir., 293 F. 1013. See Hopkins v. State (1991), Ind., 579 N.E.2d 1297; accord Cornett v. State (1983), Ind., 450 N.E.2d 498; Peterson v. State (1983), Ind., 448 N.E.2d 673. In Frye, the District of Colombia Court of Appeals, in excluding evidence of a "monograph" lie detector test, held that before admitting experimental scientific principles or discoveries into evidence:

the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye, supra at 1014 (emphasis added); Hopkins, supra at 1301. The holding in Frye can be broken into two components: 1) what is the "field", or how broad is the scientific community, in which thermograms belong, and 2) has the thermogram been sufficiently established to have gained general acceptance there. 3 We will address

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each of these components separately. 4

First, when determining how broad the field, or scientific community, is in determining the admissibility of infrared thermograms, we look to Cornett, supra for guidance. In Cornett, our supreme court discussed the admissibility of voice spectrograms and whether the scientific community should be comprised only of those scientists who use voice spectrograms for voice identification, or whether...

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41 practice notes
  • US Sugar Corp. v. Henson, No. 1D99-2798.
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2000
    ...1991)(no novel or newly developed device or process utilized by doctor consequently Frye inapplicable); and K-Mart Corp. v. Morrison, 609 N.E.2d 17, 27 n. 9 (Ind.App.1993)(requiring novel scientific evidence to be reliable before it is admissible before the workers' compensation board, noti......
  • Banks v. IMC Kalium Carlsbad Potash Co., No. 27,714.
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 9, 2003
    ...Daubert apply because the rules of evidence do not apply to administrative workers' compensation proceedings); K-Mart Corp. v. Morrison, 609 N.E.2d 17, 26-27 (Ind.Ct.App. 1993) (holding that expert testimony is only admissible in workers' compensation proceedings if it is shown to be reliab......
  • Tagliati v. Nationwide Ins. Co.
    • United States
    • Superior Court of Pennsylvania
    • October 6, 1998
    ...as well as one Pennsylvania case from the court of common pleas, have reached a contrary result. See, e.g., K-Mart Corp. v. Morrison, 609 N.E.2d 17, 26 (Ind.Ct.App.1993); Kluck v. Borland, 162 Mich. App. 695, 699, 413 N.W.2d 90, 92 (1987); Burkett v. Northern, 43 Wash.App. 143, 147, 715 P.2......
  • Sheridan v. Catering Management, Inc., No. A-96-399
    • United States
    • Court of Appeals of Nebraska
    • January 7, 1997
    ...blood alcohol tests, see Domino's Pizza v. Gibson, 668 So.2d 593 (Fla.1996), and infrared thermography, see K-Mart Corp. v. Morrison, 609 N.E.2d 17 (Ind.App.1993). See, also, Garcia v. Borden, Inc., 115 N.M. 486, 853 P.2d 737 (N.M.App.1993) (dissent not advocating Frye test or suggesting th......
  • Request a trial to view additional results
41 cases
  • US Sugar Corp. v. Henson, No. 1D99-2798.
    • United States
    • Court of Appeal of Florida (US)
    • December 29, 2000
    ...1991)(no novel or newly developed device or process utilized by doctor consequently Frye inapplicable); and K-Mart Corp. v. Morrison, 609 N.E.2d 17, 27 n. 9 (Ind.App.1993)(requiring novel scientific evidence to be reliable before it is admissible before the workers' compensation board, noti......
  • Banks v. IMC Kalium Carlsbad Potash Co., No. 27,714.
    • United States
    • New Mexico Supreme Court of New Mexico
    • September 9, 2003
    ...Daubert apply because the rules of evidence do not apply to administrative workers' compensation proceedings); K-Mart Corp. v. Morrison, 609 N.E.2d 17, 26-27 (Ind.Ct.App. 1993) (holding that expert testimony is only admissible in workers' compensation proceedings if it is shown to be reliab......
  • Tagliati v. Nationwide Ins. Co.
    • United States
    • Superior Court of Pennsylvania
    • October 6, 1998
    ...as well as one Pennsylvania case from the court of common pleas, have reached a contrary result. See, e.g., K-Mart Corp. v. Morrison, 609 N.E.2d 17, 26 (Ind.Ct.App.1993); Kluck v. Borland, 162 Mich. App. 695, 699, 413 N.W.2d 90, 92 (1987); Burkett v. Northern, 43 Wash.App. 143, 147, 715 P.2......
  • Sheridan v. Catering Management, Inc., No. A-96-399
    • United States
    • Court of Appeals of Nebraska
    • January 7, 1997
    ...blood alcohol tests, see Domino's Pizza v. Gibson, 668 So.2d 593 (Fla.1996), and infrared thermography, see K-Mart Corp. v. Morrison, 609 N.E.2d 17 (Ind.App.1993). See, also, Garcia v. Borden, Inc., 115 N.M. 486, 853 P.2d 737 (N.M.App.1993) (dissent not advocating Frye test or suggesting th......
  • Request a trial to view additional results

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