Walker v. State, Muscatatuck State Development Center

• Decision Date: 17 April 1998
• Docket Number: No. 93S02-9804-EX-216,93S02-9804-EX-216
• Citation: 694 N.E.2d 258
• Parties: Stella I. WALKER, Appellant (Plaintiff Below), v. STATE of Indiana, MUSCATATUCK STATE DEVELOPMENT CENTER, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 258

694 N.E.2d 258

Stella I. WALKER, Appellant (Plaintiff Below), v. STATE of Indiana, MUSCATATUCK STATE DEVELOPMENT CENTER,

Appellee (Defendant Below).

No. 93S02-9804-EX-216.

Supreme Court of Indiana.

April 17, 1998.

C. Richard Marshall, Shari E. Kinnaird, Columbus, for Appellant.

Jeffrey A. Modisett, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

SELBY, Justice.

Stella I. Walker, plaintiff and appellant below ("plaintiff"), challenges the decision of the Worker's Compensation Board ("Board") which denied her application for total permanent disability payments. ¹ The critical question before this Court is whether the seamstress position at the Muscatatuck State Development Center ("Center"), which the State offered to plaintiff under its partial disability program, constitutes "reasonable employment," thereby defeating her claim for total permanent disability. Both the Board and the Court of Appeals concluded that the position offered plaintiff under the State's disability program did constitute reasonable employment. We disagree. We conclude that such employment, as a matter of law, cannot constitute "reasonable employment" so as to defeat plaintiff's claim for total permanent disability payments because the offered position was only temporary and was so highly accommodated ² to plaintiff's disability that, once the position would end, it would be extremely difficult if not impossible for her to find suitable employment in the general competitive labor market. We, therefore, reverse the decision below and remand for further proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS BELOW

Plaintiff worked in the laundry facilities of the Muscatatuck State Development Center from 1988 to 1991. She is approaching sixty years of age, has only an eighth grade education, and reads at the level of a sixth or seventh grader. The parties stipulated that she was injured in an accident arising out of and during the course of her employment ³ with the Center on September 3, 1991. As she and another employee pulled apart large laundry baskets which were stuck together, she felt her lower back pop and experienced significant pain. Then, in December 1991, Dr. Thomas Marshall, a state-provided orthopedic surgeon, diagnosed her as having degenerative disk disease with a L5/S1 grade II spondylolisthesis, that is, the fifth lumbar vertebra had slipped forward and displaced more than 25% in relationship to the S1 vertebra. After conservative treatment was unsuccessful, Dr. Marshall performed spinal fusion surgery to fuse her L4, L5, and S1 vertebrae.

During 1991 through June 26, 1993, the State paid plaintiff medical benefits ⁴ and Plaintiff filed an Application for Adjustment of Claim with the Board and an amended Application on February 12, 1993 and September 3, 1993 respectively. By a letter dated November 14, 1994, more than three years after her injury and more than a year after plaintiff filed her amended Application, the State offered plaintiff a temporary, full-time position as a seamstress under the State's partial disability program, ⁷ subject to plaintiff's and Dr. Marshall's approval. The position was temporary and would exist only until plaintiff "is released to work without restriction, or is released with restrictions in the third year of long term disability, or exhausts benefits under the plan" after approximately four years. (R. at 324). Plaintiff, after consulting with Dr. Marshall, declined to accept this position.

                weekly temporary total disability benefits under its worker's compensation program.  Her average pre-injury weekly salary was $235.50, and her weekly disability rate was $157.01. 5  The State paid plaintiff a total of $13,222.49 in temporary total disability benefits over the course of approximately eighty-four weeks.  On June 26, 1993, however, the State ceased all worker's compensation benefits. 6
                

At the hearing on April 26, 1995, plaintiff presented Dr. Marshall who testified that plaintiff was disabled and unlikely to be able to return to her former employment at the Center's laundry facility due to her physical limitations. He reported that she cannot perform work which requires repetitive bending or twisting and cannot do overhead work; that she is limited to lifting or carrying five to ten pounds occasionally but cannot perform either one of these activities for any duration; and that it is unlikely that she can perform either one of these activities for one hour per day. ⁸

Regarding the possibility of sedentary work, Dr. Marshall reported that "it is unlikely that Stella Walker could maintain a sitting posture for two hours at one stretch," and that "[s]he probably would be able to sit for one hour, but then would have to get up and move about." (R. at 239-40.) He testified that it is unlikely that she could perform a job that would involve stooping or bending forward at the waist, given that she had only thirty degrees of forward flexion instead of seventy-five to ninety degrees. He specifically advised plaintiff that she could not perform the seamstress position offered to her by letter dated November 14, 1994. He made it clear that he regarded her condition as having stabilized and her limitations as being permanent. Specifically, he noted that "[s]he is unfit for any employment because she can't do anything which requires her to do prolonged standing, sitting or any repetitive bending or twisting," (R. at 290) and that she is "[u]nfit to return to employment permanently" (R. at 291). He evaluated her loss at 25% whole body impairment.

Plaintiff also presented the testimony of Archie Sanders, a vocational expert and certified rehabilitation counselor who interviewed and evaluated plaintiff to determine In addition to interviewing plaintiff, Sanders reviewed her medical records to assist him in evaluating her exertional limitations and also considered nonexertional factors that could affect her employability, including her age, education level, mental status, intelligence, and prior training and work experience. Regarding her exertional limitations, Sanders noted that, although she has range of motion limitations due to her back problem, she also has a significant pain problem that is associated with her back and that limits her ability to function. According to Sanders, individuals experiencing such pain often have difficulties concentrating and persevering with a task, and this, in turn, translates into problems with production and employability.

her employability. She told him that she had trouble urinating, dressing herself, making the bed, and running a vacuum cleaner. She stated that she could not stand for more than ten minutes without experiencing pain in her back and right leg, and could not sit for more than several minutes. She could not stoop, bend, or squat, and had difficulty climbing steps and lifting a gallon of milk weighing between eight and nine pounds. She also had experienced a depression that had improved since she went on medication.

Regarding her nonexertional limitations, Sanders noted that she was born on April 17, 1938, that is, she was fifty-seven years old at the time of the hearing; that some work attributes related to ability to physically exert oneself as well as to eye/hand coordination and to manual and finger dexterity, often decline as a person ages; and that, in addition, it is more difficult to find work when you are older. With regard to her education, she did not receive any schooling beyond the eighth grade, did not receive her GED, and did not receive any vocational training. Her previous positions all involved manual labor. ⁹

Sanders concluded: "Mrs. Walker obviously has too many pain limitations to be able to perform any kind of work, even at a sedentary level, that I would know of in the economy. In my opinion, there's [sic] no reasonable kinds of jobs that a person with her limitations could do." (R. at 57.) He stated that she has no transferrable skills outside of her previous work, and that, in light of her exertional and nonexertional limitations, there are no categories of employment that she could do on a full-time or half-time basis, and there is no kind of job in the economy that he would recommend that she try. He opined that she could not perform as a seamstress on a full-time basis and could not perform that job four hours per day three days per week.

Plaintiff testified as to the pain she experiences when sitting or standing and explained that during the course of the day she needs to lie down five or six times for approximately forty-five minutes to an hour. She testified her legs and hands sometimes tingle or get numb, and that she has difficulty thinking because of the pain, but also has difficulty functioning when she takes the medication to relieve the pain. She also testified that she loved working, and that, but for the pain, would like to continue to work, but that she knows that she cannot work and particularly that she cannot work every day. She was familiar with the position of seamstress, because she did sewing while working at the laundry, and stated that the job required her to bend forward. She did not think that she could perform the job of seamstress.

In response to plaintiff's evidence, the State presented a report by Dr. Lorber, a medical doctor who examined her once and opined that her fusion surgery was not successful in stabilizing her vertebrae, and that her prognosis was poor. He stated that it is unlikely that she could resume work in the laundry, and he concluded that she has a Ralph Hunter, the State's personnel officer for the Center, testified that they would tailor the seamstress position previously offered to plaintiff as a full-time position, to suit her disability. In light of the testimony and evidence, Hunter testified that she could work four hours per day three days per week rather...