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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
Apr 15 2008, 9:55 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: TIMOTHY W. WISEMAN R. JAY TAYLOR JR. Scopelitis, Garvin, Light, Hanson & Feary Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: TIMOTHY O. MALLOY EDWARD C. LAWHEAD Schreiner, Malloy & Etzler, P.C. Highland, Indiana

IN THE COURT OF APPEALS OF INDIANA
VERSTO, INC. d/b/a BVD TRUCKING, Appellant-Defendant, vs. JAMES SMITH, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 93A02-0710-EX-907

APPEAL FROM THE INDIANA WORKER'S COMPENSATION BOARD Application No. C-178151

April 15, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Versto, Inc., d/b/a BVD Trucking ("BVD"), appeals the decision of the Indiana Worker's Compensation Board ("the Board") 1 finding that James Smith is permanently and totally disabled and awarding him worker's compensation benefits. We affirm. Issues BVD raises three issues, which we restate as follows: I. Whether the Board's findings were sufficiently specific to permit intelligent review; Whether probative evidence supports the Board's decision; and Whether Smith rebutted BVD's evidence of reasonably available employment. Facts and Procedural History The parties submitted a trial stipulation, which reads in pertinent part: 1. That on or about August 19, 2003, Plaintiff, James Smith, was an owner/operator of a truck and trailer which he leased to Defendant, BVD Trucking. 2. Defendant BVD Trucking provided [Smith] with worker's compensation insurance coverage pursuant to I.C. 22-3-6-1(b)(8). 3. That on or about August 19, 2003, while working in the course and scope of his employment as a truck driver for the Defendant, BVD Trucking, [Smith] sustained injuries to his left shoulder, left hip, left ribs, and neck as a direct result of a fall from a tractor-trailer. 4. [Smith] reported the incident to [BVD] and subsequently sought medical attention for his injuries at Methodist Hospital in Gary, Indiana on August 19, 2003. 5. [Smith] was forced to seek treatment at Methodist Hospital the following day due to the severity of his left shoulder pain, upon which Dr. John Diveris initiated treatment. 6. An MRI of [Smith's] left shoulder was ordered by Dr. Diveris and same was performed on October 9, 2003, at the Diagnostic Specialties
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II. III.

We refer to the "Single Hearing Member" and the "Full Board" when the distinction is necessary.

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Center. The MRI revealed a large full thickness tear of [Smith's] left rotator cuff. 7. Based on the above findings, [Smith] underwent an arthroscopic repair of his left rotator cuff and biceps tenodesis with Dr. Diveris on October 29, 2003. 8. [Smith] subsequently underwent a course of physical therapy, but suffered a retear of the left shoulder [, which] was revealed on a repeat MRI. 9. Consequently, [Smith] underwent a second surgery to his left shoulder with Dr. Diveris on January 9, 2004 .... 10. [Smith] continued to experience persistent and severe pain in the left shoulder and failed to re-establish his strength and range of motion in that shoulder, so a repeat MRI was performed in April of 2004 and it revealed a recurrent tear of the left rotator cuff. 11. As a result of these findings, Dr. Diveris referred [Smith] to Dr. Anthony Romeo. 12. Dr. Romeo initially evaluated [Smith] on April 30, 2004 and noted in his narrative report that full functional strength in overhead capacity would essentially be impossible at that point in time, with any future surgical intervention directed primarily at relieving [Smith's] pain. 13. On July 1, 2004, [Smith] underwent a left shoulder arthroscopy revision rotator cuff repair ... with Dr. Romeo. 14. [Smith] underwent a functional capacity evaluation (FCE) on March 24, 2005 at the Illiana Rehabilitation Services facility, where it was indicated that he was able to function at between a light and medium category of work, which is indicative of a 2-hand maximum frequent lifting capacity of twenty-three pounds (23#) from floor to waist. 15. In April of 2005, Dr. Romeo offered [Smith] a 37% upper extremity impairment rating, which equated to a 22% whole person impairment. Also at this time, Dr. Romeo gave [Smith] permanent work restrictions consisting of: -No lifting greater than 25# frequently and 50# occasionally from floor-to-waist only; -Push/pull limited to 100# of force; and -No work at or above shoulder level[.] 16. [Smith] then presented to Dr. Nicole Einhorn on June 15, 2005 for an independent medical examination (IME), where she diagnosed [Smith] with the following: 1. Left shoulder recurrent rotator cuff tear; 2. Left shoulder biceps tendonitis; 3. Left shoulder A/C joint arthrosis; and 4. Left shoulder glenohumeral arthritis.

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17. In her IME report, Dr. Einhorn agreed with Dr. Romeo's proffered work restrictions and she also added "no repetitive shoulder motion" as another permanent work restriction. Dr. Einhorn also opined that [Smith] was at-risk for a re-rupture with full-time use of his left shoulder, even within the restrictions given. 18. On August 4, 2005, Dr. Einhorn determined that [Smith] qualified for a 25% upper extremity impairment rating, which equated to a 15% whole person impairment. 19. Thomas Roundtree was retained by [BVD] to perform a vocational assessment and in his report of August 8, 2006, Mr. Roundtree indicated that [Smith] was capable of working at a light to medium physical demand level with restrictions in reaching and repetitive use of his left arm. 20. Thomas Grzesik was subsequently retained by [Smith] to provide a second vocational assessment opinion and in his report of December 18, 2006, Mr. Grzesik felt that [Smith] was unable to perform his pre-injury occupation as a tractor-trailer truck driver due partly to the permanent work restriction of no repetitive use of the left upper extremity. Mr. Grzesik further opined that [Smith] was limited to occupations that do not require bilateral use of the upper extremities. 21. Based on his review of the evidence, his own objective findings, and [Smith's] limited learning potential and poor academic ability, Mr. Grzesik found that [Smith] met the criteria for being permanently totally disabled, as that term is defined in Perez v. United States Steel. Appellant's App. at 13-16. On May 3, 2007, a hearing was held before the Single Hearing Member. The parties also stipulated to a list of trial exhibits that included Grzesik's records ("the Grzesik Report"). Id. at 17. On June 13, 2007, the single hearing member issued his findings, conclusions, and award, which provided in relevant part as follows: FINDINGS 1. On review of the testimony of the single witness[, Smith,] and the Trial Stipulation with all of the exhibits of [Smith] and [BVD], the Single Hearing Member now finds that if the left shoulder pain with the use thereof as described by [Smith] (for doing activities/work above the waist level

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