Ricketts v. Subaru Of Ind. Auto.

SUSAN RICKETTS, Appellant,

v.SUBARU OF INDIANA AUTOMOTIVE, Appellee.

No. 93A02-1008-EX-1030

COURT OF APPEALS OF INDIANA

FILED: March 15, 2011

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

JAMES E. AYERS

Wernle Ristine & Ayers

Crawfordsville, Indiana

ATTORNEY FOR APPELLEE:

KATHLEEN K. SHORTRIDGE

Ice Miller, LLP

Indianapolis, Indiana

APPEAL FROM THE INDIANA WORKER'S COMPENSATION BOARD

Case No. C-170086

MEMORANDUM DECISION-NOT FOR PUBLICATION

DARDEN, Judge

STATEMENT OF THE CASE

Susan Ricketts appeals the order of the Worker's Compensation Board ("the Board") on her claim for disability and medical benefits arising from a work related accident at Subaru of Indiana Automotive ("SIA").

We affirm.

ISSUES

Whether the Board erred when it found that Ricketts was not entitled to any period of disability attributable to the work related accident of March 1, 2004; not entitled to any degree of permanent partial impairment attributable to said accident; and, not entitled to reimbursement for any unauthorized medical treatment.

FACTS

On March 1, 2004, Ricketts was working on the "tester line," performing functional tests on trucks after their assembly. (Exhibits p. 315). For unknown reasons, she was unable to stop a truck as she drove it to the next station, and it crashed into an I-beam. Ricketts was transported to the SIA clinic, with complaints of "neck, arm and foot pain." Id. at 49. She returned to work the next day.¹ On March 3, 2004, Ricketts reported to the SIA clinic that her feet were "burning," and felt "like they did before [her prior foot] surgery." Id. at 47.

Ricketts' treatment at the SIA clinic included examination by clinic physician Dr. Sliwkowski, CT scans of her lumbar spine and cervical spine, evaluation of her feet for allodynia and hyperpathia, an EMG, nerve conduction studies of her lower extremities, and physical therapy. In addition, SIA referred Ricketts to her podiatrist, Dr. Oliver, regarding her foot pain.

Previously, on September 2, 2003, Ricketts had reported to Dr. Oliver² her bilateral foot pain that "fe[lt] like walking on glass." Id. at 288. On October 3, 2003, Dr. Oliver performed plantar fasciitis³ release on her right foot; Ricketts explained that "[t]hey usually operate on the right foot, then the left foot kind of corrects itself." (Tr. 6). Five weeks after the surgery, on November 10, 2003, Ricketts reported to Dr. Oliver "burning pain" in both feet. Id. at 279. On March 8, 2004, Dr. Oliver saw Ricketts regarding the work related accident on March 1, 2004, and found that Ricketts "exhibited mild contusion of both feet with possible aggravation of her plantar fasciitis." (Exhibits p. 51). Subsequently, on April 19, 2004, Dr. Oliver attributed Ricketts' "continued pain and burning plantar aspects of both feet" to "unknown causes," and recommended she seek a "neurological workup." Id.

Also on April 19, 2004, Ricketts was seen for her "bilateral foot pain" by the SIA clinic physician, Dr. Sliwkowski. Dr. Sliwkowski noted that Ricketts' EMG nerve conduction studies were negative; that "her subjective complaints [were] not corresponding to objective findings" specifically, "no objective evidence of any soft tissue, nerve or bone or joint injury"; and that she walked with "a normal gait." Id. at 33.He found "no current evidence of any work related injury." Id. He advised Ricketts that she could return to work "unrestrictive," that no "further medical treatment related to her feet as relates to her trauma [was] indicated," and that she was "dischar[g]ed from care." Id. On May 10, 2004, Ricketts complained to Dr. Sliwkowski of back and foot pain. He noted that Ricketts walked "without a limp"; found no causal relationship between her back and foot pain; and advised her to "return to full duty." Id. at 29.

On May 21, 2004, Ricketts filed her application for adjustment of claim based on the work related accident of March 1, 2004.

Ricketts continued to seek treatment for her foot pain complaints with her family physicians at Arnett Clinic and other specialists. On May 21, 2004, Arnett Clinic neurologist Dr. Laycock evaluated Ricketts and noted her complaints of "bilateral foot pain," but "normal free gait." Id. at 106, 107. On June 21, 2004, Ricketts again saw her podiatrist, Dr. Oliver, for "continued complaints of pain" in her feet; Dr. Oliver noted that previous "MRI, nerve conduction study testing and plain film radiographs" were "negative for any abnormality," and found "metatarsalgia or neuritis of unknown origin." Id. at 206. On September 1, 2004, Ricketts saw Dr. Laycock "for complaints of continuing foot pain," which Dr. Laycock noted to be "of unclear etiology." Id. at 104. Dr. Laycock again found Ricketts' gait to be "normal." Id.

Ricketts saw podiatrist Dr. Perler, who on April 11, 2005, reviewed her "extensive amount" of records from other specialists and suggested possible additional evaluations; and on May 16, 2005, ordered additional tests in his continued search as to "a definitive cause" of her foot pain. Id. at 220, 216. On July 18, 2005, Dr. Perler was still "not sureof the cause" of Ricketts' foot pain, but nevertheless recommended that she undergo "tarsal tunnel decompression" surgery. Id. at 214. On July 27, 2005, Dr. Perler opined that Ricketts' pain was "somehow related to the accident." Id. at 212.

Subsequent to Dr. Perler's recommendation of surgery, SIA sent Ricketts to a Board-certified orthopedic specialist at OrthoIndy, Michael Shea, M.D., for a medical evaluation. After his November 7, 2005, examination, Dr. Shea opined that the surgery recommended by Dr. Perler was not "necessary or appropriate," based on the lack of objective data of entrapment neuropathy. Id. at 16. Dr. Shea's diagnosis was neuralgia, or nerve pain, of "unknown etiology" but which pain had a "chronological onset" coinciding with the March 1, 2004 work accident "rather than true physical findings on examination" in that regard. Id. Dr. Shea opined that Ricketts had permanent partial impairment, "chronologically... attributable to a work injury on March 1, 2004"; and was "most likely at the point of maximum medical improvement." Id. After receiving additional test results showing no evidence of entrapment neuropathy, Dr. Shea opined on January 16, 2006, that Ricketts had a permanent impairment of "4% of the whole person." Id. at 13.

In the meantime, on December 20, 2005, Rickets complained to her neurologist, Dr. Laycock of "foot pain." Id. at 102. Dr. Laycock again noted the "unclear etiology" of Ricketts' foot pain, suggested the possibility of "small fiber neuropathy" and "still ha[d] questions as to whether this is a trauma related problem." Id. at 103.

Seeking a second opinion, Dr. Laycock referred Ricketts to Dr. Pascuzzi, a neurological specialist at Indiana University Medical Center. On December 22, 2005, Dr.Pascuzzi heard Ricketts' complaints of "burning pains in the feet," reviewed her records, and "suspect[ed]"... sensory peripheral neuropathy," the etiology of which was "not clear." Id. at 54, 55. Dr. Pascuzzi advised Ricketts that it was "not clear to [him] how the trauma would account for a sensory peripheral neuropathy." Id. at 55.

On February 16, 2006, Ricketts treated with Dr. Greenwald at Arnett Clinic for complaint of foot pain. He noted that "a very extensive array of treatments, evaluations, and therapies" had not revealed the "cause of the problem," assessed her gait as "normal," and found "no evidence of entrapment syndrome or tarsal tunnel syndrome." Id. at 97, 98. On March 1, 2006, Dr. Greenwald noted Ricketts' "normal" gait and "neuropathic-type pain." Id. at 94. Dr. Greenwald referred Ricketts to another podiatrist, Dr. House, who evaluated her on April 11, 2006, noted a normal gait and other normal test results, and "suspected neuralgia." Id. at 235.

On April 20, 2006, Dr. Laycock noted that Ricketts' tests for nerve disease were negative. On September 22, 2006, Dr. Laycock concluded that Ricketts had "a small fiber peripheral neuropathy" which was "not related to her work." Id. at 75.

Meanwhile, on August 24, 2004, John Gorup, M.D., had reported to Dr. Oliver his "orthopedic consultation" regarding Ricketts' "bilateral foot burning pain." Id. at 198. Dr. Gorup "ha[d] no good explanation for her symptomatology." Id. at 199. On September 17, 2004, Dr. Gorup reported seeing Ricketts after a bone scan, and still "d[id] not have a good answer for her ongoing symptoms." Id. at 196.

Ricketts then went to the Mayo Clinic in Jacksonville, Florida, where Dr. Boylan, a neurologist at the Clinic, reported that she was "undergoing medical evaluation... forchronic lower extremity pain" on November 1, 2006. Id. at 181. Dr. Boylan did not "identif[y] any specific neurologic dysfunction or diagnoses as the cause" of Ricketts' pain complaints, and referred her for consultation with Dr. Sletten at the Clinic. Id. at 191. On November 14, 2006, Sletten, "Ph.D., Department of Pain Medicine," evaluated Ricketts and recommended that she complete "the Rochester Mayo Clinic Pain Rehabilitation Program." Id. at 182, 186.

On January 10, 2007, the Mayo Clinic in Rochester, Minnesota, admitted Ricketts to its Pain Rehabilitation Center program with a diagnosis of chronic "bilateral leg and back pain." Id. at 155. Ricketts participated in its three-week program to "gain coping skills to help manage pain," address her "functional and behavioral morbidities," engage in physical conditioning, and reduce her utilization of medications. Id. at 119, 186.

Upon discharge on January 31, 2007, Ricketts reported a significantly reduced pain level, and was found to have "demonstrated a significant decline in pain behaviors," made gains in her physical conditioning, and discontinued her use of...