Opinion
23A-EX-2605
05-28-2024
Nancy Ostrowski, Appellant-Plaintiff v. Indiana University, Appellee-Defendant
ATTORNEY FOR APPELLANT Joseph E. Allman Allman Law LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Jenny R. Buchheit Ann H. Stewart Ice Miller LLP Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Full Worker's Compensation Board of Indiana The Honorable Linda P. Hamilton, Chairman The Honorable Kyle L. Samons, Hearing Member Application No. C-246127
ATTORNEY FOR APPELLANT Joseph E. Allman Allman Law LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Jenny R. Buchheit Ann H. Stewart Ice Miller LLP Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Nancy Ostrowski appeals the final determination of the full Worker's Compensation Board ("the Board"), which affirmed the Single Hearing Member's finding that Ostrowski did not qualify for worker's compensation benefits. Ostrowski claims that the Board's determination was clearly erroneous. We disagree and, accordingly, affirm.
Issue
[¶2] Ostrowski presents one issue on appeal, which we restate as whether the Board clearly erred in affirming the decision of the Single Hearing Member that Ostrowski was not entitled to worker's compensation benefits.
Facts
[¶3] At the time relevant to this appeal, Ostrowski was employed by Indiana University ("the University"). Before this, Ostrowski was employed by Eli Lilly and Company, but she left this position due to her medical problems, which included memory issues, cardiac issues, and bilateral hip arthritic symptoms. These medical issues limited Ostrowski's ability to walk, lift, and carry items. Ostrowski began to work full-time for the University in February 2016, at the Kinsey Institute ("the Institute") located on the Bloomington campus. When Ostrowski began her employment with the Institute, it was located in Morrison Hall, which had nearby parking spaces reserved for those with disabilities. Ostrowski had a permit to park in these spaces. After parking, she would then walk to Morrison Hall without incident. In July 2018, the Institute relocated to Lindley Hall. The parking spaces for those with disabilities at Lindley Hall were quite a bit farther from the building.
[¶4] In June 2018, before the move to Lindley Hall, Ostrowski visited her treating cardiologist, Dr. Kyle Hornsby, with complaints of atrial fibrillation and arthritis in her hips. Dr. Hornsby diagnosed Ostrowski with atrial fibrillation and atypical atrial flutter. Dr. Hornsby classified these issues as permanent because Ostrowski refused to pursue anti-arrhythmic therapies or procedures. Dr. Hornsby informed Ostrowski that she had no restrictions based on her heart condition and that exercise would not put her at risk for future cardiac events.
"Atrial fibrillation, often called AFib or AF, is the most common type of treated heart arrhythmia." Atrial Fibrillation, Centers for Disease Control (Oct. 14, 2022) [https://perma.cc/QS37-WQ4M]. "When a person has AFib, the normal beating in the upper chambers of the heart (the two atria) is irregular, and blood doesn't flow as well as it should from the atria to the lower chambers of the heart (the two ventricles)." Id. Atrial fibrillation "may happen in brief episodes, or it may be a permanent condition." Id.
[¶5] Ostrowski's first day of working for the Institute at Lindley Hall was July 9, 2018. The temperature that day was at or above ninety degrees Fahrenheit. Ostrowski could not find a parking space close enough to Lindley Hall to avoid walking up a hill to get to the building. Ostrowski struggled to walk up the hill and often had to stop. When she arrived at Lindley Hall, she was out of breath, sweating, and felt weak and sick to her stomach. Ostrowski later attempted to speak with the director of parking operations, but she was informed that closer parking was unavailable at Lindley Hall.
[¶6] Ostrowski encountered a similar situation on July 10, 2018. She had to park at a parking lot near the Indiana Memorial Union. She struggled to walk to Lindley Hall, and one of her coworkers fanned Ostrowski to help cool her down once she arrived. The next day, Ostrowski again had to park near the Union and again struggled to walk to Lindley Hall. She felt so ill the following day that she did not go into work and instead saw Dr. Hornsby, who told her to take eight weeks off due to her condition. Ostrowski never returned to work at the University, and she was on medical leave from July 13 through October 28, 2018.
[¶7] On December 18, 2018, Ostrowski filed a work injury claim with the University, which the University denied. On June 13, 2019, Ostrowski filed an application for adjustment of claim. This application was delayed at Ostrowski's request while she pursued a separate claim in federal court under the Rehabilitation Act. See Ostrowski v. Bd. of Trs. of Ind. Univ., No. 1:19-cv-02834 (S.D. Ind. July 10, 2019) (complaint). The Single Hearing Member conducted a hearing on Ostrowski's application on February 16, 2023. Ostrowski testified on her own behalf. Deposition testimony was also admitted from the following witnesses: Ostrowski's cardiologists, Dr. Hornsby and Dr. John Miller; Ostrowski's primary care physician, Dr. Jeffrey Kons; and the University's expert cardiology witness, Dr. Samuel Shubrooks. Ostrowski's medical records were also admitted at the hearing.
The parties settled that case in June 2021. See Ostrowski v. Bd. of Trs. of Ind. Univ., No. 1:19-cv-02834-JRS-MJD (S.D. Ind. June 21, 2021) (order granting joint stipulation to dismiss).
[¶8] On May 23, 2023, the Single Hearing Member found that the issues Ostrowski suffered from on July 9-11, 2018, were "caused by routine, everyday activities." Appellant's App. Vol. II p. 17. The Single Hearing Member also found that "[t]he medical evidence supports that those symptoms were temporary and could have occurred anywhere. The fact [that] they occurred at work does not make it a compensable injury under the [Worker's Compensation] Act." Id. The Single Hearing Member then concluded:
1. [Ostrowski] has not met her burden of proving by a preponderance of the evidence that she sustained injury by accident in the course of and arising out of her employment with [the University] when she walked from her vehicle to her office in Lindley Hall on July 9 through July 11, 2018.
2. Pursuant to Ind. Code § 22-3-2-2(a), in order to be compensable, the Plaintiff must sustain "personal injury . . . by accident arising out of and in the course of the employment."
3. The burden of proof is on the employee and the proof of one particular element of a claim does not create a presumption in favor of the employee with regard to another element of the claim.
4. In "the course of" employment refers to the time, place, and circumstances of the injury. [Ostrowski] has sufficiently established that she was in the course of her employment during those three (3) days in July 2018.
5. An injury "arises out of" employment when the employee establishes by a preponderance of the evidence that a causal nexus exists between the injury and the employment. "Arising out of" employment refers to the origin or cause of the injury. [Ostrowski] has failed to prove by a preponderance of the evidence that her cardiac and arthritic conditions were caused or aggravated by her employment with the Defendant on July 9 through July 11, 2018.
6. The stipulated medical evidence leads to a conclusion that [Ostrowski]'s pre-existing conditions were symptomatic and disabling prior to July 2018 and were not aggravated by the walks to Lindley Hall. The credible testimony of Dr. Hornsby and Dr. Miller is persuasive and afforded the greatest weight.
7. The opinion of Dr. Kons, [Ostrowski]'s primary care physician, is given little weight due to the fact that his causation opinion with respect to [Ostrowski]'s cardiac problems conflicts with [Ostrowski]'s treating cardiac electrophysiologists and [the University]'s expert cardiologist, Dr. Shubrooks. Dr. Kons' causation opinion pertaining to the arthritis is predicated on the disabling nature of [Ostrowski]'s cardiac function, which all the cardiac physicians have opined was not negatively impacted by walking on those three (3) days in July 2018. Therefore, the credible opinions of Dr. Hornsby, Dr. Miller and Dr. Shubrooks are afforded greater weight than that of Dr. Kons.
8. [Ostrowski]'s cardiac condition and bilateral hip osteoarthritis are a result of her personal health conditions rather than an employment related risk and are therefore not compensable under the Worker's Compensation Act.Id. at 17-18 (emphasis added). The Board agreed with the Single Hearing Member's decision and, on October 5, 2023, adopted the Single Hearing Member's decision. Ostrowski now appeals.
Discussion and Decision
[¶9] Ostrowski argues that the Board clearly erred in denying her claim for worker's compensation benefits. We disagree.
I. Standard of Review
[¶10] "'On appeal, we review the decision of the Board, not to reweigh the evidence or judge the credibility of witnesses, but only to determine whether substantial evidence, together with any reasonable inferences that flow from such evidence, support the Board's findings and conclusions.'" Waters v. Ind. State Univ., 953 N.E.2d 1108, 1112 (Ind.Ct.App. 2011) (quoting Bertoch v. NBD Corp., 813 N.E.2d 1159, 1160 (Ind. 2004)). We apply a two-tiered standard of review: we first review the record to determine whether there is competent evidence of probative value to support the Board's findings; second, we then determine whether the findings support the Board's decision. Id. (citing Ag One Co-op v. Scott, 914 N.E.2d 860, 862-63 (Ind.Ct.App. 2009)). We may disturb the Board's factual determinations only "if 'the evidence is undisputed and leads inescapably to a result contrary to that reached by the Board.'" Id. (quoting Bertoch, 813 N.E.2d at 1160). Unlike the deference given to the Board's factual findings, we review the Board's conclusions of law de novo. Id. (citing Bertoch, 813 N.E.2d at 1160).
II. The Worker's Compensation Act
[¶11] In DePuy, Inc. v. Farmer, our Supreme Court summarized the Worker's Compensation Act (which it referred to as the "WCA") as follows:
The WCA provides "compensation for personal injury or death by accident arising out of and in the course of employment." Ind. Code § 22-3-2-2 (2004)....
An injury "arises out of" employment when a causal nexus exists between the injury or death and the duties or services performed by the injured employee. The causal relationship is established when a reasonably prudent person considers a risk to be incidental to the employment at the time of entering into it. "Employment" means more than merely performing services directly related to the job for which the employee was hired, and includes activities reasonably incidental to one's employment. . . . Whether a risk or injury is incidental to employment is determined by the activity in which the employee was engaged when injured and its relationship to: 1) his duties; 2) the reasonableness of employee's acts in relation to the sum total of conditions and circumstances constituting the work setting at the time of the injury; and 3) the knowledge and acquiescence of the employer in situations where acts incidental to employment are being done in violation of company rules.847 N.E.2d 160, 164-65 (Ind. 2006) (citations and internal quotations omitted). Whether an injury arises out of the course of employment is generally a question of fact for the Board. Id.
[¶12] In contrast to an injury arising out of employment, there are also risks personal to the employee. Such personal risks are those "'caused by a pre-existing illness or condition, unrelated to employment.'" Id. (quoting Pavese v. Cleaning Solutions, 894 N.E.2d 570, 576 (Ind.Ct.App. 2008); accord Milledge v. The Oaks, 784 N.E.2d 926, 930 (Ind. 2003)). Injuries resulting solely from risks personal to the claimant are entirely unrelated to the circumstances of employment and are, therefore, universally non-compensable. Id. (citing Kovatch v. A.M. General, 679 N.E.2d 940, 943 (Ind.Ct.App. 1997), trans. denied). As we explained in Waters:
The classic example of a risk personal to a claimant is a "syncopal episode" or fainting spell, which usually leads to a fall and resulting injuries. But where an employee's pre-existing condition combines with a circumstance of his or her employment to result in an injury, the employee is entitled to recover for the full extent of the injury.953 N.E.2d at 1114 (citation omitted).
III. The Board's decision is not clearly erroneous.
[¶13] Here, the Board determined that Ostrowski's symptoms were temporary, caused by her pre-existing health conditions, and "could have occurred anywhere." Appellant's App. Vol. II p. 17. The Board, therefore, concluded that Ostrowski's symptoms did not arise out of her employment. Ostrowski claims that the Board's decision is clearly erroneous. We disagree.
A. Finding No. 27 is not clearly erroneous.
[¶14] Ostrowski first argues that the Board's finding of fact No. 27 is clearly erroneous. This finding provides:
The parties refer to the Single Hearing Member's findings. Since the Board adopted the Single Hearing Member's decision, we refer to the findings as the Board's findings. See Dial X-Automated Equip. v. Caskey, 826 N.E.2d 642, 644 (Ind. 2005) (holding that the Board's adoption of the explicit written findings of the Single Hearing Member is sufficient to attribute the findings to the Board and permit appellate review thereof).
[Ostrowski]'s increased symptoms on July 9 through July 11, 2018, were caused by routine, everyday activities. The medical evidence supports that those symptoms were temporary and could have occurred anywhere. The fact they occurred at work does not make it a compensable injury under the Act.Appellant's App. Vol. II p. 17.
[¶15] Ostrowski argues that this finding is clearly erroneous because her symptoms were caused not by everyday activities but by a "forced [] march" and "arduous trek" to Lindley Hall. Appellant's Br. p 21. The University does not dispute that Ostrowski experienced temporary symptoms during her walk but claims that her walk to and from her office is everyday and routine, as found by the Board. We agree. Anyone who has visited Indiana University's Bloomington campus can attest to its hilly terrain. The finding that Ostrowski's walk to and from her office was routine is not clearly erroneous.
[¶16] Ostrowski also claims that Finding No. 27 is "a bit contradictory" to Finding No. 4, which found that Ostrowski demonstrated that she was in the course of her employment during the walks. Appellant's Br. p. 21. Ostrowski notes that "[t]he stronger the causal link to employment, the weaker the showing required to find an injury to be incurred in the course of employment." Glob. Constr., Inc., 813 N.E.2d at 1168. Still, there must be a "causal connection between the injury and the worker's employment" before it can be said that the injury "arose out of" the employment. Id. In fact, in Global Construction, the court noted that the injury in that case was not alleged to have originated with a pre-existing physical condition. Id. Here, in contrast, Ostrowski's alleged injuries did originate with her pre-existing physical condition and are, thus, noncompensable under the Act. Accordingly, we cannot say that Finding No. 27 is clearly erroneous.
B. The Board's conclusions of law are not clearly erroneous
[¶17] Ostrowski also claims that the Board's conclusions of law are clearly erroneous. First, Ostrowski claims that the Board ignored the fact that she was found to be "completely disabled" by her cardiologist-Dr. Hornsby-and was placed on eight weeks of leave. Appellant's Br. p. 22. The Board, however, was not bound by Dr. Hornsby's opinion about Ostrowski's disability. Moreover, whether Ostrowski is disabled is a separate question from whether her alleged injuries arose out of her employment. In addition, the EKG that Dr. Hornsby ordered following Ostrowski's July 13 visit showed no significant changes from Ostrowski's prior EKG. Dr. Hornsby also testified that Ostrowski's symptoms were temporary and that her walks to Lindley Hall did not cause any permanent damage to Ostrowski's heart.
[¶18] Ostrowski also claims that the Board "completely ignore[d]" the uncontroverted medical evidence from Ostrowski's primary care physician- Dr. Kons-that the walks to Lindley Hall aggravated the arthritis in her hips. Id. at 24. This is inaccurate. As the Board explained in its findings, Dr. Kons based his opinion on Ostrowski's cardiac issues, not on her hip issues. That is, he believed that the walks to Lindley Hall affected Ostrowski's heart, which decreased her mobility, which then led to "permanent debilitation of her bilateral hip arthritis." Appellant's App. p. 17. Dr. Kons did not believe, however, that the walk by itself would be debilitating. Id. The Board, moreover, gave little weight to Dr. Kons's opinions about causation. Indeed, Dr. Kons's opinion about Ostrowski's cardiac function was contradicted by both the opinion of Ostrowski's treating cardiologist, Dr. Hornsby, and the University's expert cardiologist, Dr. Shubrooks. But we cannot reassess the Board's credibility determinations.
[¶19] We also find Ostrowski's citation to Waters, 953 N.E.2d 1108, and Bertoch, 813 N.E.2d 1159, to be unavailing. In Waters, the claimant broke her femur while exiting a restaurant booth at an employer-sponsored lunch. The Board denied the claim for workers compensation benefits, and Waters appealed. On appeal, a panel of this Court reversed, concluding that, although the pre-existing conditions may have contributed to Waters's injury, the injury was at least partially caused by her exiting the booth. 953 N.E.2d at 1116. And in Bertoch, the Board denied benefits to the widow of an employee who suffered a fatal heart attack while responding to a fire alarm at his place of work. On appeal, our Supreme Court reversed, concluding that, although the employee had a preexisting condition, the stress of responding to the fire alarm aggravated this condition and caused the heart attack. 813 N.E.2d at 1163. In contrast, here, the Board found that Ostrowski's symptoms were temporary, unlike the permanent injury and death at issue in Waters and Bertoch respectively.
[¶20] Before the incidents in July 2018, Ostrowski had left her prior employment due to her serious medical issues. And the month before the July incidents, Dr. Hornsby diagnosed Ostrowski with atrial fibrillation and atypical atrial flutter. Dr. Hornsby informed Ostrowski that she had no restrictions based on her heart and that exercise would not put her at risk for future cardiac events. During the time in which she walked to Lindley Hall, Ostrowski contacted Dr. Hornsby. Dr. Hornsby did not treat Ostrowski's symptoms as a medical emergency and instead scheduled to see her at his next-available appointment days later. The EKG that Dr. Hornsby ordered following Ostrowski's July 13 visit showed no significant changes from her prior EKG. In fact, Dr. Hornsby believed that Ostrowski's symptoms were temporary and that her walks to Lindley Hall did not cause any permanent damage to Ostrowski's heart.
[¶21] Similarly, the University's expert witness, Dr. Shubrooks, testified that Ostrowski's walks to Lindley Hall did not worsen Ostrowski's cardiac health. Dr. Shubrooks instead noted that Ostrowski's July 2018 EKG showed improvement in her cardiac health compared to the prior EKG. We recognize that Ostrowski's primary care physician, Dr. Kons, gave opinions that disagreed with the above. We, however, may not reweigh the evidence or judge witness credibility on appeal. In short, there was sufficient evidence to support the Board's conclusion that Ostrowski's alleged injuries did not arise out of her employment with the University but were instead temporary in nature, based on risks personal to Ostrowski, and caused by her pre-existing medical conditions.
In her reply brief, Ostrowski notes that "injury" as used in the Act, "means unexpected injury," Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 975 (Ind. 1986), and argues that her symptoms were such an "unexpected injury". The University claims that Ostrowski waived this argument by presenting it for the first time in her reply brief. We agree. See Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977 (Ind. 2005) ("The law is well settled that grounds for error may only be framed in an appellant's initial brief and if addressed for the first time in the reply brief, they are waived."). The University filed a motion to strike the portions of Ostrowski's brief that reference this new argument, which we deny by an order issued contemporaneously with this decision. Waiver notwithstanding, Ostrowski's argument is unavailing. The fact that Ostrowski's symptoms may have been unexpected does not mean that they constituted a compensable injury. The Board found that Ostrowski's symptoms were temporary and caused by her preexisting conditions and, thus, non-compensable under the Act. As discussed above, this finding is not clearly erroneous.
Conclusion
[¶22] Neither the Board's findings of fact nor its conclusions of law are clearly erroneous. Accordingly, we affirm the Board's decision denying Ostrowski's claim for benefits.
[¶23] Affirmed.
Mathias, J., and Weissmann, J., concur.