Van-Scyoc v. Mid-State Paving

• Decision Date: 07 May 2003
• Docket Number: No. 93A02-0207-EX-533.,93A02-0207-EX-533.
• Citation: 787 N.E.2d 499
• Parties: Stephen VAN-SCYOC, Appellant-Plaintiff, v. MID-STATE PAVING, Appellee-Defendant.
• Court: Indiana Appellate Court

787 N.E.2d 499

Stephen VAN-SCYOC, Appellant-Plaintiff, v. MID-STATE PAVING, Appellee-Defendant.

No. 93A02-0207-EX-533.

Court of Appeals of Indiana.

May 7, 2003.

Timothy J. Vrana, Sharpnack Bigley LLP, Columbus, IN, Attorney for Appellant.

Miriam A. Rich, Indianapolis, IN, Attorney for Appellee.

OPINION

MATHIAS, Judge.

Stephen Van-Scyoc ("Van-Scyoc") was employed by Mid State Paving ("Mid State") and injured while acting within the scope of his employment. Due to his injury, Van-Scyoc was unable to return to work, and Mid State's worker's compensation insurance carrier paid temporary total disability benefits to Van-Scyoc for approximately six months. After the insurer terminated disability and medical benefits, Van-Scyoc filed an Application for Adjustment of Claim with the Worker's Compensation Board ("the Board"). After a hearing, the single board member found that Van-Scyoc is permanently partially impaired as a result of the injury and entitled to compensation for five degrees of impairment, but that he is not disabled as a result of the injury. After reviewing the hearing member's award, the full Board adopted and affirmed that decision; however, three Board members dissented.

Van-Scyoc appeals and argues that the Board improperly denied his application for permanent total disability benefits. Finding that the Board's findings do not contain the requisite specificity to permit meaningful intelligent review, we remand for proceedings consistent with this opinion.

Facts and Procedural History

On October 18, 1994, Van-Scyoc, a fifty-two year old male, was performing concrete roadwork for Mid State, which involved knocking metal forms weighing approximately fifty pounds off of the concrete after it was poured and finished. While lifting a form, Van-Scyoc slipped and felt instant pain in his hip, groin, and back. As a result of the injury, Van-Scyoc was treated by several medical providers, including Dr. J. Paul Kern.

Dr. Kern diagnosed Van-Scyoc as having a low back injury and referred him to Progressive Physical Therapy. Dr. Kern treated Van-Scyoc through December 22, 1994, and assigned to him a Permanent Partial Impairment rating ("PPI") of five percent. On that date, Dr. Kern concluded that Van-Scyoc had reached maximum medical improvement and no medical or surgical treatment would significantly change his overall functional level. Appellant's App. p. 218. Dr. Kern also adopted the Functional Capacity Evaluation prepared by Progressive Physical Therapy and released Van-Scyoc to return to work with certain work restrictions. Appellant's App. pp. 218, 220. Several restrictions were imposed on Van-Scyoc, including: 1) at a maximum, Van-Scyoc's can perform floor to waist lifting of ten pounds for five percent of an eight-hour day and six pounds for thirty-three percent of an eight-hour day; 2) Van-Scyoc cannot walk more than thirty-three percent of an eight-hour day; 3) Van-Scyoc must avoid any crawling, kneeling, crouching, or repetitive squatting; 4) Van-Scyoc can only sit for up to five percent of an eight-hour day and needs frequent breaks from sitting in order to stand up; 5) Van-Scyoc can only stand for up to five percent of an eight-hour day and requires frequent breaks in order to walk or sit. Appellant's App. pp. 155-57.

On January 13, 1995, Van-Scyoc was examined by Dr. Herbert Biel at the request of Mid State's worker's compensation carrier, and Dr. Biel's diagnosis was lumbar strain. Dr. Biel agreed with Dr. Kern's recommendations regarding work restrictions and the five percent PPI rating. Appellant's App. pp. 221-22.¹

Van-Scyoc was examined by Dr. Don Jardine on February 15, 1995. Dr. Jardine found that Van-Scyoc has "clinical right thoracic, left lumbar scoliosis." Appellant's App. p. 182. Dr. Jardine's diagnosis was lumbar strain, superimposed upon advanced degenerative lumbar disc disease in most areas of the lumbar spine. It was Dr. Jardine's opinion that Van-Scyoc's symptoms on the date of examination were related to his October 18, 1994 injury, and he agreed with Drs. Kern's and Biel's conclusions concerning work restrictions and the PPI rating. Dr. Jardine also recommended that Van-Scyoc be evaluated by Dr. Robert Silbert at the Indiana Center for Rehabilitation Medicine, Inc. Appellant's App. p. 183.

Dr. Silbert treated Van-Scyoc from March 16, 1995 to April 19, 1995, and his treatment included epidural steroid injections and physical therapy. An EMG study was conducted and his test results were normal with no evidence of radiculopathy.² Appellant's App. p. 66. On April 19, 1995, Dr. Silbert released Van-Scyoc to return to work, with restrictions, including: 1) no floor to waist lifting, 2) no more than thirty minutes of continuous sitting, 3) no more than thirty-five minutes of continuous standing, and 4) no more than twenty minutes of continuous walking. Appellant's App. p. 65. Dr. Silbert also assigned a PPI rating of five percent to Van-Scyoc. Appellant's App. p. 60. After Van-Scyoc was released from Dr. Silbert's care, Mid State's worker's compensation insurance carrier stopped paying temporary total disability benefits to Van-Scyoc.

Due to his continuing pain, Van-Scyoc sought and received treatment from several other medical providers and did not return to work. Subsequently on February 19, 1996, Van-Scyoc filed his Application for Adjustment of Claim with the Board. After filing his claim, Van-Scyoc continued to undergo physical therapy, and on December 31, 1996, he was examined by Dr. F. Shawn Madden. Dr. Madden concluded that Van-Scyoc's pre-existing conditions of degenerative disk disease³ and spondylolisthesis⁴ were asymptomatic until his October 18, 1994 work-related injury. Appellant's App. pp. 243-44. However, Dr. Madden also stated that Van-Scyoc's conditions of disc dehydration and foraminal stenosis⁵ were not caused by the injury. When asked whether Van-Scyoc's condition would have progressed absent injury, Dr. Madden indicated that "it's easy to assume that at some point he may have started having trouble because he had foraminal stenosis, which showed that he had the nerve root impingement. So, you would think that at some point he might actually start having some trouble." Appellant's App. p. 273. Essentially, Dr. Madden concluded that Van-Scyoc's pre-existing conditions were asymptomatic and the work-related injury aggravated those conditions.

In 1998, Van-Scyoc began to seek treatment from a psychiatrist for depression, rage, hostility, and impotence. Appellant's App. pp. 442-45. Van-Scyoc has been treated for depression on several occasions for limited periods of time throughout his life. Also, on November 20, 1998, Van-Scyoc was evaluated by Dr. George Lewis. Dr. Lewis assigned a forty-seven percent PPI rating to Van-Scyoc, and Dr. Lewis opined that

[t]here is a causal relationship between the injury and the patient's physical and mental condition because one occurred because of the other. He is not going to get any better, but just get worse. He has been to all adequate people for evaluation. He has received many treatments, lots of treatments. Some of the treatment has been way beyond what ordinarily would happen. His complaints are even in excess of what ordinarily would be there. The injury has resulted in this gentleman having an impairment so that he has trouble finding gainful employment.

Appellant's App. pp. 302-03.

In 1999, Van-Scyoc was evaluated by a vocational rehabilitation counselor.⁶ The counselor noted Van-Scyoc's employment history, which generally consisted of building construction, roadway construction, and carpentry. The counselor determined that due to Van-Scyoc's age, work history, functional capacity evaluations, participation in vocational rehabilitation, and his failed work attempt,⁷ "there are no reasonable forms of employment to which he can avail himself, using the terms as contemplated by the Worker's Compensation Act of Indiana." Appellant's App. p. 340.

A hearing was held before a single hearing member on November 4, 1999.⁸ The parties stipulated that the only issues before the hearing member were 1) whether Van-Scyoc was permanently totally disabled as a result of the October 18, 1994 injury; 2) whether, in the alternative, he is entitled to an award of PPI benefits; 3) whether he is entitled to an award of past medical expenses; and 4) whether he is entitled to an award of future medical benefits. Appellant's App. p. 6. Van-Scyoc argued that he was permanently totally disabled as a result of his October 18, 1994 injury. He testified that prior to the October 18, 1994, injury he had never been injured or suffered any back pain that kept him from working. Tr. p. 34.

On October 3, 2000, after reviewing Van-Scyoc's medical records and medical testimony, Functional Capacity Evaluations, and testimony and reports from vocational experts, the hearing member issued his findings and conclusions, which provide:

1. The treating physician, Dr. Kern, diagnosed a lifting injury and after care, including physical therapy, medical, a CT scan and an MRI, he found Van-Scyoc to be at MMI [i.e., maximum medical improvement] and assessed a permanent partial impairment rating of five percent (5%) of the whole person on January 9, 1995.

2. At Defendant's request, Dr. Biel examined Plaintiff; he diagnosed lumbar strain and degenerative lumbar disc problems; he agreed Plaintiff was MMI and assessed a PPI rating of five percent (5%) of the whole person.

3. At Plaintiff's request, the IME doctor, Dr. Jardine, diagnosed lumbar strain superimposed on advanced degenerative disc disease; he concluded there was a question whether he is at medical quiescence and referred Plaintiff to Dr. Silbert.

4. On April 20, 1995, Dr. Silbert found Plaintiff at MMI and assessed a PPI rating of five percent (5%) of the whole person.

5. Dr. Kern had Plaintiff evaluated and treated at Progressive Physical Therapy, who did an FCE [i.e., Functional...