Goodman v. Olin Matheison Chemical Corp.

367 N.E.2d 1140, 174 Ind. App. 396, 1977 Ind. App. LEXIS 989
CourtIndiana Court of Appeals
DecidedOctober 4, 1977
Docket2-1074A244
StatusPublished
Cited by12 cases

This text of 367 N.E.2d 1140 (Goodman v. Olin Matheison Chemical Corp.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goodman v. Olin Matheison Chemical Corp., 367 N.E.2d 1140, 174 Ind. App. 396, 1977 Ind. App. LEXIS 989 (Ind. Ct. App. 1977).

Opinions

White, J.

The Industrial Board of Indiana has certified to us additional findings of fact which we requested in a previously unpublished Memorandum Decision which we now publish as an introduction to this opinion. Omitting caption and mandate, our Memorandum Decision reads:

“Mrs. Goodman was awarded 150 weeks compensation ‘as and for permanent partial impairment of 30 percent of the body as a whole’. She contends she was entitled to 500 weeks for total permanent disability. Also, that the Industrial Board abused its discretion in ordering her examined by a doctor of defendant’s choice who she contends was not disinterested. Because the Board’s specific findings are insufficient to enable us to decide the first issue we shall hold the appeal in abeyance [397]*397pending further findings which the Board is ordered to certify to us on or before December 1,1976.

“The Board’s findings relevant to the issue of whether Mrs. Goodman’s condition is one of permanent partial impairment or of total permanent disability are:

“ ‘It is further found that on September 18,1968, plaintiff was an employee of the defendant Olin, working on its assembly line lifting powder kegs or bags. She also filed a hopper with powder, as well as tying the “tails” at the bottom of the powder bags.
“ ‘That in the course of and while doing the aforementioned described job duties she bent down but couldn’t come back up.
* * *
“ ‘That on January 17,1972, the plaintiff is wearing the second brace she has had, waits on herself, cooks a little, but still is unable to work.
“ ‘That Dr. McCullough estimated plaintiff had reached a permanent and quiescent state long ago and that she now has fifteen percent estimated impairment.
* * #
“ ‘That it was stipulated at the hearing on the merits of the cause before the Single Hearing Member that plaintiff was an employee of defendant Olin on September 18,1968, at an average weekly wage in excess of the maximum of $85; that she was injured on said date in an accident arising out of and in the course of her employment and she has been paid temporary total disability compensation for 126 weeks.
“ ‘It is further found that defendants have paid at least a portion of the statutory medical expenses.
“ ‘It is further found that plaintiffs injury has reached a permanent and quiescent state and she has sustained permanent partial impairment of 30 percent of the body as a whole as the result of said accident and injury.’

“The specific finding that she ‘still is unable to work’ would have sustained the conclusion that she was totally disabled had the Board so concluded. The fact that the Board concluded, instead, that ‘she has sustained permanent partial impairment of [398]*39830 percent of the body as a whole as a result of said accident and injury’ suggests that the Board may have concluded that although she is totally disabled and that her condition is ‘permanent and quiescent’, only thirty percent of her disability is ‘the result of said accident and injury’, while the remaining seventy percent is the result of her pre-existing condition.

“Though not conceding that appellant is totally and permanently disabled the appellee-employer does concede that there was evidence from which the Board could have concluded that her disability is permanent and total and that she was suffering no impairment prior to her stipulated injury at work. At the same time, appellee contends the evidence most favorable to it supports the Board’s award which it claims we are required for that reason to affirm. More specifically appellee says:

“ ‘Although the Full Board did not expressly find the degree of plaintiff’s pre-existing impairment, as the plaintiff might argue it should have done, it is implicit in the award that any impairment which plaintiff has above 30% to her whole body pre-existed her injury ... and that the sum of her pre-existing impairment and the aggravation suffered in that injury amounts to less than permanent and total disability.’

“For her part, appellant concedes that ‘[t]here were many pre-existing conditions which play a role in the total permanent disability ... [she] suffers from today’, but argues to the effect that the evidence proves that she was not suffering from any impairment or disability prior to the injury. She believes that what the Board has done is to attribute the origin of her present total disability partly (70%) to her pre-existing condition and partly (30%) to her injury. If that be so, and if appellant had no pre-existing impairment or disability, but is now totally disabled, it would appear that the award is contrary to law. Indianapolis Abattoir Co. v. Coleman (1917), 65 Ind. App. 369, 117 N.E. 502; Puritan Bed Spring Co. v. Wolfe (1918), 68 Ind. App. 330, 333, 120 N.E. 417; Bethlehem Steel Corporation v. Cummings (1974), 160 Ind. App. 160, 310 N.E.2d 565. In Bethlehem the court said:

“ ‘Our prior decisions make it clear that the concern of this statute [Ind. Ann. Stat. §22-3-3-12 (Burns Code Ed., 1974), a “subsequent permanent injury statute”] lies in those instances where a claimant at the time of the complained of [399]*399incident is already suffering an impairment or disability in the affected members. Where he merely has a physical condition which renders him more susceptible to being injured, he is entitled to recover for the full extent of the injury received. . . .’ 310 N.E.2d at 567.”

The newly certified findings and award read, in pertinent part, as follows:

“It is found that on September 18, 1968, the Plaintiff was in the employ of the Defendant performing the normal duties to which she had been assigned and on that date, by fact and by stipulation of the parties, said Plaintiff had an accident arising out of and in the course of her employment for said Defendant.
“It is further found that the Defendant-Employer had actual notice of said accident, and provided certain statutory medical treatment to the Plaintiff by sending Plaintiff to the hospital for the treatment of any injuries which she may have received as a result of the aforesaid accident at her employment.
“It is further found that the Plaintiff received an injury from said accident on September 18,1968, and said injury was in the nature of a sprain or strain to the lumbar region of her low back.
“It is also found that prior to said accident of September 18,1968, the Plaintiff had several pre-existing conditions in her back and said pre-existing conditions consisted of kyphosis, spondylosis or osteoarthritis and lardosis, all which contributed to a weakened and degenerating condition in Plaintiffs back and the anatomical structures related to the Plaintiffs back.
“It is further found that Plaintiff suffered a period of temporary total disability for 126 weeks during which time she was paid the sum of $51.00 per week, based upon an average weekly wage in excess of the statutorily allowable maximum of $85.00.

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Goodman v. Olin Matheison Chemical Corp.
367 N.E.2d 1140 (Indiana Court of Appeals, 1977)

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Bluebook (online)
367 N.E.2d 1140, 174 Ind. App. 396, 1977 Ind. App. LEXIS 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodman-v-olin-matheison-chemical-corp-indctapp-1977.