Albright v. Four Winds International
2011 Ind. App. LEXIS 1057
| Ind. Ct. App. | 2011Background
- Albright, employed by Four Winds in 2005, sustained neck injury (C7-T1 herniated disc) requiring discectomy and fusion.
- Authorized impairment: 18% whole-person impairment; Four Winds paid $25,000 under a Compensation Agreement.
- Cymbalta prescribed by Dr. Weston to treat paresthesias and mood symptoms; dosing increased over time (60 mg bid, etc.).
- Independent medical review by Dr. Poder (Jan 2009) recommended a two-month continuation of Cymbalta with a more detailed follow-up report.
- Dr. Weston updated Feb. 6, 2009, noting substantial pain improvement (60-70%) and advocating long-term continuation of Cymbalta.
- July 2010, after a stipulation, a single hearing member denied ongoing Cymbalta coverage; the Board affirmed.
- Court reversed and remanded, directing the Board to award Cymbalta for treatment of paresthesias and determine duration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of new evidence before the Board | Waives objection; Board abused discretion by admitting new evidence not before the first member. | No waiver; Board properly considered additional evidence. | Waived; no abuse of discretion found; evidence admission sustained. |
| Sufficiency of evidence to support denial of Cymbalta | Evidence shows Cymbalta helped paresthesias and related pain; Board erred in not crediting this. | Board properly limited consideration to depression/anxiety rationale and severed from compensable injury. | Reversed; undisputed evidence supports Cymbalta for paresthesias; remand for award. |
| Relation of Cymbalta use to the compensable injury and impairment | Cymbalta treated neuropathic pain and thus is related to the compensable neck injury; use should be authorized. | Long-term antidepressant use not proven to limit impairment; not compensable. | Remand instructed to determine duration and scope of coverage for Cymbalta. |
Key Cases Cited
- Perkins v. Jayco, 905 N.E.2d 1085 (Ind. Ct. App. 2009) (palliative care can be compensable if it reduces pain and limits impairment)
- Montgomery Aviation, Inc. v. Hampton, 650 N.E.2d 77 (Ind. Ct. App. 1995) (evidence of improvement and functional restoration supports continued treatment)
- Obetkovski v. Inland Steel Indus., 911 N.E.2d 1257 (Ind. Ct. App. 2009) (review standard: affirm Board findings unless evidence is undisputed and compels contrary result)
- Oshinski v. Northern Ind. Commuter Transp. Dist., 843 N.E.2d 536 (Ind. Ct. App. 2006) (waiver principles for appellate review of evidentiary objections)
- Wright Tree Serv. v. Hernandez, 907 N.E.2d 183 (Ind. Ct. App. 2009) (stipulations simplify litigation but do not admit controverted facts)