Rork v. Szabo Foods

426 N.E.2d 1379, 1981 Ind. App. LEXIS 1696

Opinions

HOFFMAN, Presiding Judge.

This is an appeal from an Industrial Board award in favor of plaintiff-appellant Mary Rork for injuries sustained in the course of her employment by defendant-ap-pellee Szabo Foods. The injuries complained of were found by the Board to consist of a sprained ankle and aggravation of a pre-existing condition of osteoarthritis, both of which resulted when Rork fell while leaving work on April 22, 1977. Rork’s initial hearing on her workmen’s compensation claim was before a single Board member who made the award based on his finding of ten percent permanent partial impairment. This decision was affirmed by the full Board. From this affirmance, Rork appeals and presents the following specific issues:

(1) whether the Industrial Board failed to make sufficient findings of fact to allow this Court to intelligently review the award;

(2) whether there was sufficient evidence to support the Industrial Board finding that Rork suffered ten percent permanent partial impairment of the body as a whole; and

(3) whether the Industrial Board finding that there was insufficient evidence on which to base a finding of permanent total disability was contrary to law.

The first issue presented by Rork for consideration here is whether the Board failed to make sufficient findings of fact. Findings of fact supporting a Board decision should be specific enough with respect to contested issues to enable a reviewing court to intelligently review the Board’s award. Penn-Dixie Steel Corp. v. Savage (1979), Ind.App., 390 N.E.2d 203. This requirement was discussed most recently by the Indiana Supreme Court in Perez v. United States Steel Corp. (1981), Ind., 426 N.E.2d 29.

In Perez, the Supreme Court remanded a Board decision for the reason that the Board’s findings of fact were insufficient. There the Board’s ultimate finding was:

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

At 30. This ultimate finding was supported only by the following “specific” findings:

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

Id. Holding these “specific” findings insufficient to permit intelligent review of the ultimate finding, the Court stated that:

“We believe that both claimant and employer have a legal right to know the evidentiary basis upon which the ultimate finding rests. . . . That responsibility initially lies with the administrative agency, who for that reason must enter specific findings of basic fact to support its finding of ultimate fact and conclusion of law. Parties will thereby be enabled to formulate intelligent and specific arguments on review. In turn, the reviewing court can expeditiously and effectively review the agency’s determination; the integrity of that decision will be maintained by judicial review which is limited to these findings.”

Id. at 32. These “specific” findings, then, must be specific enough to reveal the Board’s reasons for its ultimate decision. Id. at 32. The case at bar is unlike Perez in several respects.

In the case at hand, the Board made sufficient specific findings to support its ultimate finding that Rork suffered ten percent partial impairment as a result of her accident and that any impairment greater than ten percent was from conditions unrelated to her accident. The findings in support of this conclusion are far more specific than those found insufficient in Perez. These specific findings were that Rork suffered accidental injury in the course of her employment on April 22,1977; that the medical evidence in the case consisted of testimony given in the depositions of four medical doctors; that Rork suffered an ankle sprain and an aggravation of a pre-existing condition of osteoarthritis as a result of her accident; that Rork had a pre-existing condition of osteoporosis and other medical problems unrelated to her accident; and that there was insufficient evidence that Rork’s injuries did not reach a permanent and quiescent state on or before March 13, 1978. To require the Board to be more “specific” in this case would force the Board to restate in its findings all pieces of medical testimony both in favor of and contrary to the Board’s decision. This type of “specificity,” of course, is not necessary. See, Perez, supra, At 32; Talas v. Correct Piping Company, Inc. (1981), Ind., 426 N.E.2d 26.

In addition to the Board’s finding of ten percent permanent partial impairment, the Board also found “that there is insufficient evidence upon which to base a finding of permanent total disability.” Again, unlike Perez, the Board here has not shirked its responsibility to make sufficient findings of fact to support this conclusion. A finding of permanent total disability will be made where the claimant shows that she has been so incapacitated by her injuries as to be unable to carry on reasonable types of employment. Perez, supra, At 31. It has been argued that such a determination necessitates a study not only of medical factors but also of non-medical factors. See, Perez v. United States Steel Corp. (1981), Ind.App., 416 N.E.2d 864, at 868 (Staton, J. dissenting) vacated, (filed September 28, 1981) Ind., No. 981 S 264. The burden of proof rests with the claimant, Dennison v. Martin, Inc. (1979), Ind.App., 395 N.E.2d 826, and the Board cannot be faulted where the claimant fails in this burden.

Assuming, arguendo, that the Board must weigh medical and non-medical factors to decide if a claimant is permanently totally disabled, the Board in this case could not have been more specific in its findings. A review of the record in this case reveals that, except for her age, Rork presented absolutely no evidence concerning non-medical factors which might affect her claim of permanent total disability.¹ Where the claimant has neglected her duty to present a factual foundation to support a claim of total permanent disability, it is not the responsibility of the Board to bring forth such evidence, nor is the Board required to make findings of non-existent facts. The only evidence presented as to Rork’s claim of permanent total disability consists of highly conflicting medical testimony. Where evidence is in conflict, it is for the Board to weigh the testimony and arrive at a decision. The appellate court will not remand a case and require the Board merely to state that it placed more weight on some evidence than on other evidence when it is obvious that this is exactly what the Board has done. Hence, given the lack of evidence presented by the claimant in this case, and recognizing that the Board can be no more specific in its findings than what is allowed by the evidence, the Board here made sufficient findings to support its ultimate conclusion that there was insufficient evidence to prove Rork’s claim that she was permanently totally disabled.

Rork’s second attack focuses on the Board’s finding that Rork suffered ten percent permanent partial impairment and that any impairment exceeding ten percent was from conditions unrelated to the accident in question. Rork urges that this finding is unsupported by sufficient evidence. Consequently, she maintains that the Board’s finding must be reversed.

This Court has held that a determination of a question of fact by the Industrial Board is conclusive if supported by substantial evidence of probative value. Rivera v. Simmons (1975), 164 Ind.App. 381, 329 N.E.2d 39. This Court’s inquiry into Board findings is quite limited. This Court may not weigh the evidence and it is the province of the Board alone to “hear and weigh the evidence, determine the evidentiary facts and from such facts draw reasonable inferences to arrive at the ultimate fact.” Joseph E. Seagram & Sons, Inc. v. Willis (1980), Ind.App., 401 N.E.2d 87, at 91; see also, White v. Woolery Stone Co., Inc. (1979), Ind.App., 396 N.E.2d 137.

The “ultimate fact” as found by the Board in this case is that Rork’s fall while in the course of her employment resulted in ten percent permanent partial impairment of her body. This finding is based on the medical testimony which consisted of estimates of Rork’s impairment ranging from three percent permanent partial im pairment² to one hundred percent impairment. The apparent conflict within this testimony is not for this Court to reconcile. Such a reconciliation requires weighing the evidence which, as stated above, is left to the Board. As a result, the Board’s finding of ten percent permanent partial impairment must be upheld.

Rork finally argues that the Board finding that there was insufficient evidence on which to base a finding of permanent total disability was contrary to law. She concedes that a negative finding by the Board will only be disturbed if the evidence is undisputed and leads conclusively to a result contrary to that reached by the Board. Burton v. General Motors Corp. (1977), 172 Ind.App. 263, 360 N.E.2d 36. Rork contends that evidence that she is totally permanently disabled is uncontradicted and therefore the Board’s finding that evidence of total permanent disability was insufficient should be overturned.

The basis for Rork’s argument is deposition testimony by a doctor specializing in neurology that Rork suffered from one hundred percent impairment due to pain likely to become permanent. Other evidence estimating the extent of Rork’s injuries at lesser levels came from orthopedic surgeons. Rork argues that the orthopedic surgeons testified as to her impairment only within their specialty and that the evidence of her disability resulting from pain is uncontra-dicted. Rork’s contention, however, ignores the fact that the testimony of both orthopedic surgeons took pain into account.³ Thus, what Rork is really arguing here is that where disability due to pain is in question, more weight should be placed on the testimony of a doctor specializing in neurology than on that of an orthopedic surgeon.

In response to Rork’s argument, the case of Combs v. Nat’l Veneer & Lmbr. Co. (1974), 160 Ind.App. 501, 313 N.E.2d 76 is very instructive. In that case, a psychiatrist testified that the claimant was disabled by a psychosis. Other medical experts either did not testify as to the claimant’s mental condition or affirmatively stated that there was no mental illness. On appeal, the claimant argued that since only one psychiatrist testified regarding the claimant’s mental fitness, that testimony should take precedence over testimony by doctors specializing in other areas. This Court held that the weight assigned to various conflicting pieces of medical testimony is in the sole discretion of the Board:

“Thus, although the relative degrees of qualification of physicians in particular areas of medicine may be considered by the trier of fact in weighing their testimony as expert witnesses, the fact that one physician has earned nominally greater qualifications in a particular area cannot automatically entitle his testimony to controlling weight.”

Id. at 504, 313 N.E.2d at 77.

In the case at hand, medical evidence as to Rork’s impairment due to pain was clearly in conflict. Under the holding in Combs, supra, a decision as to the weight to be given to each piece of this conflicting evidence rests with the Board. Since it has already been shown that this Court cannot reweigh such evidence, Joseph E. Seagram & Sons, Inc. v. Willis, supra, this decision may not be reversed. The Board’s finding that there was insufficient evidence on which to base a finding of permanent total disability is upheld.

Affirmed.

GARRARD, J., concurs. STATON, J., dissents with opinion.

Footnotes

1

. The claimant in Perez, on the other hand, brought forth evidence as to his educational and vocational background. See, Perez, supra, Ind.App., 416 N.E.2d at 868 (Staton, J. dissenting).

2

. Dr. Rettig, an orthopedic surgeon, estimated Rork’s back disability to be fifteen percent of the whole body, twenty percent of which resulted from the accident.

3

. Dr. Rettig testified that there was no causal connection between Rork’s ankle sprain and her complaints of back pain. Dr. Halfast stated that any pain exhibited by Rork was due to her pre-existing problem of osteoarthritis rather than as a result of the sprained ankle.