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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.

FILED
Jul 01 2010, 8:49 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DAVID C. KOLBE Warsaw, Indiana

ATTORNEY FOR APPELLEE: MARTIN T. SPIEGEL Spiegel & Cahill, P.C. Hinsdale, Illinois

IN THE COURT OF APPEALS OF INDIANA
ELIZABETH SALDIVAR-CRUZ, Appellant-Plaintiff, vs. GUARDIAN INDUSTRIES CORP., Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 93A02-0909-EX-839

APPEAL FROM WORKERS COMPENSATION BOARD OF INDIANA The Honorable Linda Peterson Hamilton, Chair Cause No. C-186160

July 1, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Elizabeth Saldivar-Cruz ("Saldivar") filed an application for adjustment of claim with the Workers Compensation Board of Indiana (the "Board") against her employer, Guardian Industries Corp. ("Employer"). On appeal, she raises the following restated issue: whether the Board erred when it denied her application for adjustment of claim. We affirm. FACTS AND PROCEDURAL HISTORY In June 2006, Saldivar worked for Employer at its plant in Ligonier, Indiana. Her duties included inspecting, molding, and packing windshields for GMC trucks. Each windshield weighed between thirty-six and forty-two pounds. On June 11, 2006, Saldivar was working with another employee, Juan Carrizales ("Carrizales"), whose duties that day included inspecting each windshield on a turntable and then spinning the turntable toward Saldivar so that she could pick the windshield up off of the turntable, turn around with the windshield in hand, and place it on a rack to be packed. Between 7:30 and 8:00 p.m. on the evening in question, Saldivar was taking a windshield off the turntable when Carrizales, unaware that Saldivar was still picking up the windshield, forcefully spun the turntable away from her causing the windshield to break against her. About a half-hour later, Saldivar reported the incident to the second shift supervisor and filled out an accident report. Three days later, Saldivars supervisor informed her that the accident report had been lost, so Saldivar completed a second, but identical, report. Appellant's Br. at 3. Included in the report, as to the "Type of Injury/Parts of Body Affected," Saldivar indicated an injury to her left shoulder. Appellant's App. at 23.

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On July 11, 2007, Saldivar filed an application for adjustment of claim, in which she requested a hearing before a member of the Board in connection with her workers compensation claim for the June 11, 2006 incident. Prior to a hearing by the Single Hearing Member, the parties submitted their stipulations and respective contentions. Ex. Vol. at 1-3. Following the hearing, the Single Hearing Member denied Saldivars claim, finding and concluding as follows: STIPULATIONS OF THE PARTIES 1. Plaintiff was employed by Defendant on June 11, 2006 at an average weekly wage of [$]654.03. Plaintiff alleges that she sustained an accidental injury as the result of an incident on June 11, 2006 when a coworker turned a turntable containing a windshield which struck Plaintiff while she was packing another windshield. Plaintiff sought treatment with Dr. Ross, D.C. on or about July 9, 2006. Plaintiff then sought care from Fort Wayne Orthopaedics on October 23, 2006 where she gave the doctor a history of left neck and shoulder pain since June 11, 2006 related to an injury at the workplace. An MRI was ordered which showed a disc herniation at C5-6 and a cervical epidural steroid injection was then performed. Plaintiff was referred to Dr. Shugart by Dr. Lutz. Dr. Shugart saw Plaintiff on February 7, 2007 and recommended a cervical fusion. Plaintiff underwent an anterior cervical disectomy and fusion at L4-5 [sic] and C5-6 which was performed by Dr. Shugart. Dr. Shugart has provided permanent restrictions and assessed an 18% permanent partial impairment rating to the whole body.

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ADDITIONAL FINDINGS AND CONCLUSIONS 1. 2. On June 14, 2006 an incident report was prepared. According to Norman D. Ross, D.C. Plaintiff was seen on July 9, 2006 complaining of lower back, hip, left leg, neck and left shoulder pain. On July 17, 2006 Plaintiff bent over and developed severe pain, mostly in her low back. According to her personal physician, Kim Waterfall, M.D., Plaintiff could not move or do much without help. Dr. Waterfall issued an "off work" slip. On July 24, 2006 Plaintiff saw Dr. Waterfall for symptoms in the sacroiliac region. Dr. Waterfall also noted "Also she has a lot of trouble with her shoulder but that is not new. She does quite a bit of heavy lifting at work and obviously there is no way that she can do that now." On July 31, 2006 Dr. Waterfall noted that Plaintiffs back pain had improved and that she should stay off work until August 7, 2006. On August 7, 2006 Dr. Waterfall noted that Plaintiff was still feeling some pinching in her low back, but that her condition had improved and that she could return to work as of August 14, 2006. Plaintiff was seen at Fort Wayne Orthopaedics on October 23, 2006 for neck and left shoulder complaints. Plaintiff gave a history of left sided neck pain, left clavicle pain, pain down her spine and occasional numbness and tingling in her left hand. The notes indicate that Plaintiff had been seen by occupational health over the past two months. Plaintiff was given work restrictions. On October 23, 2006 John Lutz M.D. reported that he suspected that Plaintiffs symptoms were coming from her cervical spine. On November 6, 2006 Dr. Lutz reported that Plaintiffs symptoms had not improved with physical therapy. Dr. Lutz believed her symptoms were related to cervical spondylosis and recommended an MRI. The MRI revealed a disc herniation at C5-6 compressing the nerve. Dr. Lutz recommended an epidural steroid injection.

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On December 8, 2006 Plaintiff underwent an epidural steroid injection. Plaintiff experienced temporary relief of her symptoms. On December 28, 2006 Plaintiff underwent a second epidural steroid injection. She reported no relief of her symptoms. Dr. Lutz then referred Plaintiff to Robert M. Shugart, M.D. On February 7, 2007 Plaintiff saw Dr. Shugart, who recommended a cervical decompression and fusion at C5-6. Dr. Shugart noted he was checking with Defendants insurance carrier regarding the prognosis and authorization to proceed. Dr. Shugarts note dated May 16, 2007 indicated that he saw Plaintiff and continued to recommend surgery, but noted that "With information from workers compensation, at this point they are not covering it. They feel it is not related to her work." Plaintiff was kept on light duty work restrictions. Plaintiff underwent another MRI, which demonstrated a new cervical dis[c] herniation to the left at C4-5. On June 6, 2007, based on the new MRI findings, Dr. Shugart recommended a cervical fusion at C5-6, as originally planned, as well as C4-5. On June 11, 2007 Plaintiff underwent the two-level fusion. Plaintiff continued to report symptoms after undergoing the surgical procedure. On December 15, 2007 Plaintiff obtained a PPI rating from Dr. Shugart who reported that Plaintiffs condition would warrant a permanent impairment rating of 18% based on the disc herniations and surgery performed at two levels of Plaintiffs cervical spine. On January 26, 2008 Dr. Shugart reported that he did not believe Plaintiffs cervical spine conditions were related to her employment. AWARD

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Defendant is responsible under the Indiana Workers Compensation Act for any and all medical treatment and evaluation that it authorized

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pursuant to the Act. Defendant is not responsible for other medical benefits or compensation under the Act. 2. The expert evidence does not establish a medical probability that Plaintiffs dis[c] herniation at C5-6 was related to the work incident of June 11, 2006. It is found that Plaintiffs C4-5 herniation could not have been related to the work incident of June 11, 2006, as it developed long after the work incident.

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Appellant's App. at 7-9 (emphasis added). Saldivar requested and submitted a brief for Full Board Review. The Full Board issued an order adopting and affirming the "Single Hearing Members Findings and Conclusions." Appellant's App. at 5. Saldivar now appeals from that administrative agency decision. Additional facts will be added as necessary. DISCUSSION AND DECISION The Indiana Workers Compensation Act ("the Act") authorizes the payment of compensation to employees for personal injury or death by accident (1) arising out of and (2) in the course of employment. Ind. Code

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