Perez v. United States Steel Corp.

416 N.E.2d 864, 1981 Ind. App. LEXIS 1274

• Court: Indiana Court of Appeals
• Decided: February 23, 1981
• Docket: 2-880A258
• Status: Published

Opinions

GARRARD, Judge.

Benedicto Perez sustained a work related injury while employed by United States Steel Corporation. He processed a claim for workman’s compensation and was found by the board to have suffered a compensa-ble 20% permanent partial impairment. This is the second appeal on his claim.

In the first appeal we noted that Perez had claimed inter alia that he was permanently totally disabled. Our opinion noted the distinction between disability and impairment and that a claim for permanent total disability was cognizable under section 10 of the act. We concluded that because of the distinction between impairment and disability the board’s finding of a partial impairment was not sufficient to preclude a finding of total permanent disability. Therefore, since the board made no express finding concerning disability in its original award we remanded for further proceedings. To insure that the question was fairly litigated under the distinctions drawn in our opinion, we directed the board to permit additional evidence on the question of permanent total disability. Perez v. United States Steel Corp. (1977), 172 Ind.App. 242, 359 N.E.2d 925.

On remand the board permitted the parties to secure and present additional evidence on the question of disability. It then properly considered this evidence together with that adduced at the original hearing and then concluded that Perez had not established total permanent disability. Accordingly, it reaffirmed the prior award for partial impairment.

In this appeal Perez challenges the sufficiency of the findings and, additionally, urges that the evidence requires the contrary result. We disagree.

The board is required to enter findings of fact upon which its determination is made so that we, as a reviewing court, may intelligently review the award and determine the issues of law that apply to the case. Transport Motor Express, Inc. v. Smith (1974), 262 Ind. 41, 311 N.E.2d 424.

In other applications of appellate review of findings we have noted their purpose is to illuminate the reasons for decision and have concluded that they should be found adequate where they are sufficient to disclose a valid factual basis under the issues for the legal result reached. See, e. g., In re Marriage of Miles (1977), Ind.App., 362 N.E.2d 171. Within this approach to review we, however, remain convinced that a finding which states merely that “witness A testified that such-and-such occurred” is inadequate as a factual finding that the event indeed did occur. Such a conclusion — that the fact finder believed the witness — is too conjectural. See Whispering Pines Home for Senior Citizens v. Nicalek (1975), Ind.App., 333 N.E.2d 324.

In the case before us it is quite true, as Perez points out, that the portion of the board’s decision labelled “Findings” makes the bare recitation:

“That Plaintiff is not permanently totally disabled within the definition set forth in the opinion of the Court of Appeals.”

Were there nothing more we would be forced to agree with Perez’ urging since the statement fails to reveal any factual basis for the conclusion it states. It fails to say why.

However, immediately preceding this statement in that portion of the decision denominated “Summary of Evidence” appears a recitation of what the various medical witnesses testified to. The recital concludes with the following two sentences:

“In the Board’s experience, the medical findings in the evidence in this case, from both Plaintiff’s and Defendant’s physicians, show that Plaintiff is capable of pursuing many normal kinds of occupations. He has permanent partial impairment, but not a permanent total disability.”

This, in reality, is the board’s finding of fact and it clearly discloses the basis for the board’s ultimate conclusion. To the extent that it might be argued that the placement of this statement in the decision should obscure it from our view on appeal, we find a sufficient response in Indiana Rules of Procedure, Appellate Rule 15(E) which directs that no judgment shall be reversed for a defect in form where it appears that the merits of the cause have been fairly tried and determined.

Since the record of the evidence does support a determination by the board that Perez was not permanently totally disabled because he was capable of pursuing many normal kinds of occupations, the findings are not contrary to law and the decision is to be sustained.

Affirmed.

HOFFMAN, P. J., concurs. STATON, J., dissents and files separate opinion.