Triplett v. Usx Corp.

• Citation: 893 N.E.2d 1107
• Decision Date: 24 September 2008
• Docket Number: No. 93A02-0803-EX-300.,93A02-0803-EX-300.
• Court: Court of Appeals of Indiana
• Parties: Audrey TRIPLETT, Appellant-Plaintiff, v. USX CORPORATION,<SMALL><SUP>1</SUP></SMALL> Appellee-Defendant.

893 N.E.2d 1107

Audrey TRIPLETT, Appellant-Plaintiff, v. USX CORPORATION,¹ Appellee-Defendant.

No. 93A02-0803-EX-300.

Court of Appeals of Indiana.

September 24, 2008.

Sandra E. O'Brien, Allan J. Mindel, Merrillville, IN, Attorneys for Appellant.

Elizabeth M. Bezak, Singleton, Crist, Austgen & Sears, LLP, Munster, IN, Attorney for Appellee.

OPINION

CRONE, Judge.

Case Summary

Audrey Triplett appeals the decision of the Full Worker's Compensation Board ("the Board") finding that she failed to establish that she was permanently and totally disabled, that she sustained a five-percent permanent partial impairment ("PPI") rating from an at-work accident that occurred September 20, 2001 ("the Accident"), and that she failed to prove that she sustained vertigo,² or any resulting impairment from vertigo, as a result of the Accident. We affirm.

Issues

Triplett raises multiple issues; however, we address only the following two restated issues:

I. Whether Triplett waived her argument that the physician records of United States Steel Corporation ("USS") constitute an admission that she suffers vertigo as a result of the Accident, and

II. Whether the Board erred in rejecting medical opinion as to the cause of her vertigo on the ground that a differential diagnosis was not performed.

USS raises the following issue:

III. Whether it is entitled to a credit for two weeks of temporary total disability payments.

Facts and Procedural History

The evidence supporting the Board's decision and the uncontradicted adverse evidence follow. On September 20, 2001, Triplett was employed by USS as a tractor operator, a position classified in the light physical tolerance level. That day, while descending a ladder on the side of a tractor, she fell backwards to the ground, hitting the back of her head. She was taken by ambulance to Methodist Hospital. Triplett did not complain of dizziness either to the EMTs or to the doctors at Methodist. A CT scan taken that day at Methodist showed no abnormalities.

From the day of the Accident through January 27, 2003, USS provided extensive medical care to Triplett. She saw a variety of healthcare providers, including an orthopedic physician and a neurologist, and she was provided balance therapy and work conditioning. After receiving several complaints of dizziness, USS physicians referred her to Dr. George Abu-Aita, a neurologist, on October 2, 2001. He performed a neurological examination and ordered an MRI, both of which were deemed unremarkable. Appellant's App. at 97.

From February through October 2002, Triplett underwent orthopedic³ and vestibular (balance) therapy at Balance Centers of America ("BOA"). Initially, several tests related to her complaints of dizziness were administered, regarding which a therapist made the following entry:

Results of additional objective testing validate [Triplett's] deficits which include a Vestibulo-Ocular Reflex (VOR)[⁴] stabilization deficit; deficits with her somatosensory system functioning; compromises with her static and dynamic balance and ambulation skills when sensory conditions are altered; and a Benign Paroxysmal Positional Vertigo (BPPV).[⁵]

Id. at 106. At the time Triplett's therapy was discontinued in October 2002, the physical therapist at BOA noted that the "intensity of her symptoms of dizziness, nausea, and disequilibrium have decreased overall, however, continue to persist at a mild level depending on the activity she is performing." Id. at 113.

On September 5, 2002, Triplett underwent a functional capacity evaluation ("FCE"). Id. at 269. The results indicate that Triplett was able to perform in the sedentary light category in above-the-waist activities and the light category in below-the-waist activities. These were the same performance categories indicated in her 1991 FCE. Appellee's App. at 97.

Prior to the Accident, Triplett had a history of pre-existing medical conditions. In March 1989, she sustained an ankle injury as a result of an at-work accident for which she received a PPI rating of five percent. From December 1996 until December 1998, psychiatrist Dr. Ara Yeretsian treated Triplett for anxiety with panic attacks and dysthymic (mood) disorder, for which he prescribed medication. During her panic attacks, Triplett experienced dizziness, lightheadedness, nervousness, heart palpitations, shortness of breath, and sleep deprivation. From October 11, 1996, until February 24, 1997, she was off work due to these illnesses. Triplett was in a car accident causing her low back pain with radiation and was off work from April 16, 1997, to March 1, 1998. When she returned to work, she wore a back brace on a daily basis and experienced constant back pain. She was also involved in two previous car accidents in 1982 and 1984 from which she sustained injuries. In 1998, she incurred a wrist injury as a result of an at-work accident. She required multiple surgeries and missed work from October 14, 1998, to April 23, 2001. As a result of this injury, she sustained a PPI of twenty-one percent. Additionally, prior to the Accident Triplett took medication three times a day for high blood pressure. She experienced and received treatment for associated symptoms of dizziness. She also experienced dizziness with ear infections.

USS physicians referred Triplett to Dr. Suresh Mahawar for an Independent Medical Examination ("IME") and PPI evaluation. Dr. Mahawar's January 27, 2003, report concluded,

— It appears that Ms. Triplet[t] fell at work on 9/20/01 and sustained a mild concussion of brain and back sprain.

— She has received an extensive course of treatment for her injury.

— She now has reached the state of maximal medical improvement ["MMI"] and does not need any further treatment.

— She has 5% impairment as a whole person according to the 5th edition of AMA guide.

Appellant's App. at 326. USS Medical Director Craig Tokowitz, D.O., issued Triplett the same impairment rating. Id. at 256.

On April 8, 2003, Triplett obtained a Board-ordered IME with Dr. Kristie George. Dr. George's report indicates the following diagnoses: (1) mild concussion, (2) benign paroxysmal positional vertigo, (3) fibromyalgia, and (4) chronic neck pain, back pain, and occipital pain "likely secondary to #3." Id. at 143. In Dr. George's opinion,

The vertigo that [Triplett] continues to experience is very likely secondary to the injury sustained September of 2001. With regard to the vertigo, [Triplett] should be able to return to work with the restrictions of no squatting, no climbing stairs and no frequent changes in position, i.e. sitting to standing and no repetitive side to side head movements such as what might be incurred on an assembly line.

Id.

On May 29, 2003, Triplett filed her application for adjustment of claim with the Board. In November 2004, Triplett received an evaluation from Dr. Daryl L. Fortson to submit to the Single Hearing Member ("SHM") and the Board. Dr. Fortson did not specialize in the fields of neurology or psychology and was not a member of the American Academy of Disability Evaluating Physicians, although he later became a member. Dr. Fortson listed the following diagnoses:

1. Closed head injury.

2. Cerebellar dysfunction secondary to 1.

3. Severe vertigo and hearing deficits.

4. Traumatic myositis.

5. Bilateral shoulder arthritis.

6. Cervical degenerative joint disease.

7. Lumbar stenosis.

8. Early left knee arthritis.

9. Depression.

10. History of anxiety and panic attacks.

11. Left supraspinatus tendonitis and bilateral rotator cuff tendonitis.

Id. at 121. He found that because Triplett had returned to work with full duty after she injured her wrist, she must have been functioning at a high level before the Accident. He therefore determined that she was extremely debilitated from her vertigo and issued a PPI of forty percent. Id.

On February 8, 2007, the SHM conducted a hearing and issued an order that was affirmed and adopted by the Board on April 27, 2008. The fourteen-page order, reads, in relevant part,

FINDINGS OF FACT

As a preliminary matter, it is observed that portions of [Triplett's] testimony at the hearing (and as found in the two (2) deposition transcripts — Plaintiff's Exhibit # 24) were not credible and conflicted with the other credible evidence.

. . . .

9. [Triplett] suffered from multiple psychological conditions, and sought treatment for a variety of different conditions for years before September 20, 2001, including, a mood disorder (dysthymic disorder), anxiety, panic attacks and depression. When she experienced anxiety and panic attacks prior to the accident, she had symptoms of lightheadedness and dizziness. For her pre-existing psychological conditions, she took a variety of different medication on a daily basis for years prior to September 20, 2001. She also took medication on a daily basis for her blood pressure and had done so for years prior to September 20, 2001.

10. Prior to September 20, 2001, [Triplett's] psychological and physical conditions (i.e. blood pressure, ear infections, sinusitis) caused her to experience numerous symptoms for which she sought treatment including, but not necessarily limited to, one or more of the following, nervousness, dizziness, vomiting, lightheadedness, heart palpitations, blurred vision, shortness of breadth [sic] and sleep deprivation.

. . . .

12. [Triplett's] pre-existing emotional issues (namely, anxiety, panic attacks and depression) caused her limitations in activities of daily living [ADL], such as shopping and driving. On at least one occasion prior to September 20, 2001, she told USS that she did not shop or drive. She was limited in standing for any length of time after the 1997 accident and limited in ADL prior to September 20, 2001.

13 [Triplett's] limitation with driving is due to her pre-existing psychological conditions and not the September 20, 2001, accident.

. . . .

21. .... When [Triplett] was discharged from therapy on ...