Hale v. Mossberg/Hubbard

432 N.E.2d 409, 1981 Ind. App. LEXIS 1804
CourtIndiana Court of Appeals
DecidedDecember 28, 1981
DocketNo. 2-581A160
StatusPublished
Cited by1 cases

This text of 432 N.E.2d 409 (Hale v. Mossberg/Hubbard) 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
Hale v. Mossberg/Hubbard, 432 N.E.2d 409, 1981 Ind. App. LEXIS 1804 (Ind. Ct. App. 1981).

Opinion

MEMORANDUM DECISION

SHIELDS, Judge.

Appellant Virginia Hale appeals the decision of the Industrial Board (Board) which found her permanently partially impaired and required her employer, Mossberg/Hub-bard (Mossberg) to pay her for 15% permanent partial impairment.

Hale raises five issues on appeal:

1. The Board erred in finding Hale is not permanently totally disabled;
2. The Board erred in finding Hale suffered a 7% prior impairment;
8. The Board erred in failing to make a specific finding concerning the termination of Hale's temporary total disability;
4. The Board erred in failing to find Hale was denied available light work at Mossberg because of a union contract with Mossberg; and
5. The Board erred in failing to find Mossberg acted in bad faith in handling Hale's claim.

We affirm.

The evidence most favorable to the decision of the Board is that on December 13, 1977 Hale suffered a back injury when she was shoveling a substance called "oil dry" while in the performance of her janitorial duties. As a result of this injury, Hale eventually underwent a spinal fusion. She was released by her doctor to return to light work on August 15, 1978 but was told by Mossberg that light work was not available because of a union contract which required work be rotated among all employees. Hale attempted to find employment elsewhere, but was unable to do so. On January 12, 1979 Hale's physician stated her injuries had reached a permanent, quiescent state. Mossberg had paid Hale temporary total disability payments for the 56 weeks between the date of her injury and January 12, 1979. The first payment was for the agreed-upon amount of $100.27 but thereafter Mossberg reduced its weekly payments to $85.24.

The Board found Hale suffered 22% permanent partial impairment but was 7% impaired prior to her accident and therefore awarded her 15% permanent partial impairment.

[411]*411I

Hale contends the Board's finding she was not permanently disabled is erroneous.

The Board made the following findings: "2. Plaintiff, while shoveling oil-dry for Defendant, on December 18, 1977, suffered an acute, severe low back pain which was immediately reported to her foreman. This incident was treated as any industrial accident by the Defendant, and medical treatment was authorized, temporary total disability compensation was paid in part, as above stipulated and certain medical expenses were paid. "3. A dispute between the parties arose when following release on August 15, 1978, by Dr. Mackel and termination of temporary total disability payments on January 12, 1979 by Defendant, Plaintiff sought to return to work for the Defendant and was told that 'no work that does not require heavy lifting and repeated bending' was available. "A4. The defendant continued payment of temporary total disability, as above stipulated, until Defendant received a written report from Dr. Mackel dated January 12, 1979, wherein he expressed the opinion that Plaintiff's condition was permanent and quiescent and that she suffered a 10% permanent partial impairment of the body as a whole.
"7. The medical evidence in form of the Depositions of Dr. Mackel and Dr. Cattell clearly disposes of part of the issues:
(A) Plaintiff's condition was determined permanent and quiescent as of January 12, 1979.
(B) Plaintiff suffered a pre-existing condition of spondylolisthesis, which contributes 7% of the body as a whole, [sic]} which Plaintiff suffers.
(C) However, the doctors differ and their evidence is that Plaintiff suffers either 10% or 25% permanent partial impairment of the body as a whole following treatment for the accident.
"8. The Single Hearing Judge finds from all the evidence, Plaintiff suffers a total permanent partial impairment of 22% of the body as a whole, apportioned 7% as pre-existing and 15% as a result of the industrial accident suffered December 13, 1977, and that the injury was permanent and quiescent as of January 12, 1979.
"9. The Defendant does not owe for additional temporary total disability or medical expenses after January 12, 1979, but is liable for 15% permanent partial impairment from December 13, 1977, with credit, as stipulated.
"10. The Plaintiff does not suffer permanent total disability solely because the Defendant does not have employment available to fit her present limitations. The reason for the unavailability is not relevant. Further, it is unlikely that a union negotiated contract would deliberately deprive union members of their rights under Workmen's compensation. If, however, such were to be clearly alleged, the Industrial Board would respectfully decline to assume any jurisdiction and defer that issue to the jurisdiction of the Employment Security Division of Indiana.
"11. There is insufficient evidence of permanent total disability. The Plaintiff suffers only a maximum of 22% impairment of body functions, of which 15% is attributed to the accident while employed by Defendant. The spinal fusion is an accepted medical treatment for the condition suffered and limits employment, but does not totally prevent similar factory work, where such is available, generally to 25-year old females."

In reviewing the decision of an administrative board, we do not weigh evidence or judge the credibility of witnesses If the evidence is in conflict, we must affirm because we consider only the evidence most favorable to the Board's decision. We may reverse only if, based on the evidence in the record, reasonable men would be bound to reach a decision opposite to that made by the Board. Coachmen Industries, Inc. v. Yoder, (1981) Ind.App., 422 N.EH.2d 384; Lona v. Sosa, (1981) Ind.App., 420 N.E.2d 890.

[412]*412In essence Hale concludes that because she was paid temporary total disability benefits from the date of her accident to January 12, 1979 and because her condition in no way changed on and subsequent to January 18, 1979 due to the "inhibiting influences of her physical impairment of body function, her tenth grade education, her lack of work experience in any capacity other than as a laborer, her lack of specialized training and her lack of experience which would qualify her for other than laborer employment .." (Appellant's brief at 87), the finding of a lack of permanent total disability is erroneous.

Hale would rely only on that evidence that she perceives as evidence of her total permanent disability.

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Bluebook (online)
432 N.E.2d 409, 1981 Ind. App. LEXIS 1804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-v-mossberghubbard-indctapp-1981.