PS2, LLC v. Childers
| Decision Date | 06 August 2009 |
| Docket Number | No. 93A02-0902-EX-176.,93A02-0902-EX-176. |
| Citation | 910 N.E.2d 809 |
| Parties | PS2, LLC, d/b/a Boston's Gourmet Pizza, Appellant-Defendant, v. Adam CHILDERS, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kevin W. Kearney, Hunt Suedhoff Kalamaros, LLP, South Bend, IN, Attorney for Appellant.
Rick C. Gikas, Merrillville, IN, Attorney for Appellee.
PS2 LLC d/b/a Boston's Gourmet Pizza ("Boston") appeals the order of the Worker's Compensation Board ("the Board") holding that Adam Childers was entitled to receive a certain secondary medical treatment and the continued payment of temporary total disability benefits.
We affirm.
1. Whether the Board erred when it held that Childers was "entitled to receive secondary medical treatment, including surgery, for weight reduction as a precursor to his primary entitlement to back surgery to directly repair the result of his work-related accident." (Boston's App. 121).
2. Whether the Board erred when it held that Childers was entitled to receive temporary total disability benefits "while preparing for, undergoing and recovering from both his secondary and primary surgeries to treat his work-related injury, until such time as [his] injury shall become quiescent and be determined to be in a state of maximum medical improvement." Id.
According to the stipulated facts, on March 28, 2007, Childers was employed as a cook at Boston when he was accidentally struck in the back by a freezer door-sustaining an injury to his lower back. Childers immediately reported the accident to Boston and was sent for medical treatment. At the time of the accident, Childers was twenty-five years old, six feet tall and weighed approximately 340 pounds; and he smoked approximately 30 cigarettes a day.
Stipulated exhibits reflected and noted his medical treatments after the accident. An April 20, 2007, MRI of his lumbar spine evidenced degeneration of the disc with central disc herniation at the L5-S1 level. Thereafter, on April 23, 2007, his treating physician, Dr. Singh, noted Childers' pain at 8.5/10, primarily in his lower back and hip but radiating down his left leg, and initiated the first of a continuing regime of pain medication. On May 11, 2007, Dr. Singh noted Childers' back pain and numbness down the left leg, and ordered an epidural. On June 8, 2007, Dr. Singh noted that Childers had severe back and leg pain extending below the knee, and that the epidural made his pain worse. On June 19, 2007, Childers reported increased back pain with pain in the right leg, and on June 20, 2007, Dr. Singh ordered another epidural after noting that the pain had increased in his back and both legs. On July 6, 2007, Dr. Singh noted that Childers' pain had worsened, that the epidural had not helped him, and that physical therapy would be ordered. On July 20, 2007, Dr. Singh noted that Childers' pain was severe, radiating to both legs. He ordered that physical therapy be stopped due to the worsening back pain; and noted that Childers wanted to proceed with back fusion surgery, despite the many risks involved. On August 6, 2007, Dr. Singh further noted the severe escalation of Childers' back pain, which had now affected his neck.
On August 16, 2007, Childers underwent an independent medical examination by Dr. Levin, who opined that he would not recommend any neurosurgical intervention at this time due Childers' weight and age. Dr. Levin advised Childers to lose weight and that "neurosurgery would not guarantee him a cure for his problems and it could also possibly lead to more future back operations," and he recommended spinal decompression treatments instead. (Boston's App. 31).
Thereafter, on August 27, 2007, Dr. Singh noted Childers' persistent lower back and leg pain, and that he would begin spinal decompression treatments, as recommended by Dr. Levin. On September 28, 2007, Dr. Singh noted that Childers' pain returned after each spinal decompression treatment; that Childers' "weight ha[d] ballooned to 380 pounds," and his conversation with Childers "about his weight and explained he does have a problem with his back, which might require back fusion, but he is doomed to failure unless he loses some weight." (Boston's App. 32). Dr. Singh recommended that Childers consult a doctor about "lap band or gastric bypass so that he can get his weight down to a more reasonable level." Id. On October 12, 2007, Dr. Singh noted that although Childers had completed the spinal decompression treatments, his "symptoms [we]re unchanged," id., and that lap band surgery was being considered. Dr. Singh noted Childers' continued severe pain on October 26, 2007, and again on November 9, 2007.
On November 19, 2007, Childers filed a request for a hearing on his application for adjustment of claim. In Dr. Singh's report of January 16, 2008, which was admitted into evidence, he stated that "in [his] opinion," Childers was "a candidate for" spinal fusion surgery. (Childers' App. 5). However, Dr. Singh believed that because of Childers' current weight, spinal fusion surgery presented "high risk for nonunion and failure." Id. Dr. Singh noted that Childers had been unable to lose weight on his own, and that he had referred Childers for lap band surgery "so that he will lose some substantial weight and potentially improve his back symptoms and possibly even avoid surgery." Id.
On February 28, 2008, Childers and Boston attended a hearing before a Single Hearing Member ("the Member") of the Board. The Member ordered that Childers undergo a psychological evaluation to determine whether he would be a candidate for lap band surgery. Dr. Caruana conducted the psychological evaluation,2 and his report of May 28, 2008, found Childers a reasonable candidate for the proposed lap band surgery.
Additional evidence that was submitted to the Member included two reports sent to Dr. Singh in June of 2008 from a pain specialist physician noting that Childers' pain was 8-10 on a range of 0 to 10, that physical activity aggravated his pain, and that he weighed 386 pounds. Exhibits submitted to the Member also included evidence that since the date of the injury, Childers significantly reduced his cigarette consumption3 but had not completely quit smoking.
Upon receipt of the above stipulated facts and evidence, the Member issued his findings of fact, conclusions of law, and award on September 4, 2008.4 In pertinent part, his decision provided as follows:
[Boston]'s position in its simplest possible terms is that while it would provide treatment to [Childers] for his work related injury (lower back surgery), [Boston] is not obligated to provide the pre-cursor surgery (lap band for weight reduction) that would allow [Childers] to safely undergo the treatment for his work related injury. In other words, [Childers] had pre-existing conditions which would relieve [Boston] of responsibility for providing [Childers]'s treatment.
The existence of pre-existing conditions is no bar to recovery under Indiana law. Estey Piano Corporation, Employers Mutual of Wausau v. Steffen, 164 Ind.App. 239, 328 N.E.2d 240, 242 (1975), quoting from 1A Larson's Workmen's Compensation Law, § 38.10 (1973). More recently, the Indiana Court of Appeals made the following observation in reversing the Board's dismissal of a claimant's Application for Adjustment:
When a claimant's physical condition combines with an accident at work to produce a single injury, the Board may find that the injury arose out of that claimant's employment within the meaning of the Worker's Compensation Act. Four Star Fabricators, Inc. v. Barrett, 638 N.E.2d 792, 796 (Ind. Ct.App.1994).
Outlaw v. Erbrich Products Company, Inc., 742 N.E.2d 526 (Ind.Ct.App.2001). This adequately describes [Childers]'s current legal predicament, in that his physical condition — his weight and his inability to lose weight without surgery — combined with an injury that arose out of claimant's employment — being hit by a freezer door — to produce a "single injury." [Childers]'s weight surgery is a pre-cursor for the safety of [Childers]'s back surgery in ways that are legally indistinguishable from the requirements of other types of surgical preparation-anesthesia, securing a sanitary surgical environment, providing the availability of proper surgical instruments, etc. — for his back surgery. [Childers] seeks to cooperate with the medical care recommended by [Boston]'s providers. While weight loss surgery was not in the first instance identified as an a priori requirement for back surgery does not preclude it from being required as part of the injury received and the treatment required under the Act.
1. [Boston] must incur the cost of [Childers]'s weight reduction surgery not because it is unrelated to [Childers]'s work accident but because [Childers]'s pre-existing medical/health condition combines with the accident at work to create a single injury for which [Childers] is entitled to treatment.
2. Because of the conclusion that [Childers] is suffering from a single injury such that his pre-existing condition combined with the work accident to create a single injury, [Boston] must continue to pay temporary total disability benefits to [Childers] while he is preparing for, undergoing and recovering from weight loss surgery, and while [Childers] is preparing for, undergoing and recovering from lower back surgery.
* * *
1. [Childers] is entitled to receive secondary medical treatment, including surgery, for weight reduction as a pre-cursor to his primary entitlement to back surgery to directly repair the result of his work-related accident.
2. [Childers] is entitled to receive temporary total disability and all such other benefits as he may be entitled while preparing for, undergoing and recovering from both his secondary and primary surgeries to treat his work-related injury, until such time as [Childers]'s injury shall become quiescent and be...
To continue reading
Request your trial