Duncan v. George Moser Leather Co., 2-479A112
| Decision Date | 28 August 1980 |
| Docket Number | No. 2-479A112,2-479A112 |
| Citation | 408 N.E.2d 1332 |
| Parties | Nathan H. DUNCAN, Appellant (Plaintiff Below), v. GEORGE MOSER LEATHER COMPANY, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
David V. Scott, Rebecca G. Looney, Kelso & Scott, New Albany, for appellant.
Michael A. Bergin, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee.
Plaintiff-appellant Duncan appeals the decision of the Industrial Board denying him recovery of his form 14 Workmen's Compensation application for review on account of a change in condition.
We affirm in part and reverse in part.
Following a fall and strain to his back on May 29, 1974, while working at Moser Leather Company (Company), Duncan filed a form 9 application for compensation under the Workmen's Compensation Act. 1 An award was entered by the Industrial Board.
On June 24, 1976, Duncan filed a form 14 application claiming a change in condition. From the decision of the single hearing judge Duncan sought review to the Full Board. On March 22, 1979, the following findings and award were entered:
Said Full Industrial Board having heard arguments of counsel and having reviewed the entire file and being duly advised in the premises, now finds that on October 10, 1974, plaintiff filed his Form 9 application pursuant to which an agreed and stipulated award was entered on July 18, 1975, which found that the plaintiff suffered a 16.8% permanent partial impairment to the man as a whole as a result of an accidental injury he received on May 29, 1974.
It is further found that on June 24, 1976, the plaintiff filed his Form 14 alleging that his condition had changed since the award; that he now suffers from a permanent and total disability as a result of said accident.
It is further found from the only medical evidence submitted, that of Dr. Millan, that the plaintiff suffers from a lower back strain which results in a 15% permanent partial impairment to the man as a whole.
It is further found that the plaintiff has been placed on a weight restriction by the said Dr. Millan and that he is not allowed to left (sic) anything heavier than fifty pounds.
It is further found that of the plaintiff's original Form 9 and from the medical reports submitted by the parties, which reports consist of Doctors McDaniel Ewing, George McCorcklin and Vernon Bundy, pursuant to which an original award of 16.8% of the man as a whole was given, that the plaintiff suffered from an injury to his upper back and not that of the lower back.
It is further found that there is no medical evidence to establish the causal connection between the plaintiff's original injury and that of which he presently complains.
It is further found that the objections to the opinion testimony by the employment counselor should be sustained on the grounds that his opinions were formed and based on documents which he, himself, did not prepare and which were not introduced into evidence at any point during the trial.
Said Full Industrial Board of Indiana now finds for the defendant and against plaintiff on plaintiff's Form 14 application filed June 24, 1976.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that the claimant has not suffered from an increased permanent partial impairment since the date of the original award.
IT IS FURTHER ORDERED that he is not permanently totally disabled nor are the injuries for which he presently complains IT IS FURTHER ORDERED that the Workmen's Compensation Act and the laws construing the same do not permit a claimant to obtain permanent total disability benefits pursuant to a Form 14 application once the claimant has received an original award for permanent partial impairment.
causally connected to that of his original injury.
IT IS FURTHER ORDERED that the plaintiff take nothing by his Form 14 application filed June 24, 1976.
DATED THIS 22 day of March, 1979.
From this award Duncan perfected his appeal to this court.
I. May a claimant obtain permanent total disability benefits pursuant to a form 14 application once he has received an award for permanent partial impairment?
II. Did the evidence show as a matter of law that Duncan's injuries were causally related to his injury under the original award?
III. Did the Board err in excluding opinion testimony on the grounds that the expert's opinions were based on documents that he did not prepare and were not in evidence?
ISSUE May a claimant obtain permanent total disability benefits pursuant to a form 14 application once he has received an award for permanent partial impairment?
PARTIES' CONTENTIONS Duncan contends that Ind.Code 22-3-3-27 permits the Board to modify or change the permanent partial impairment award to a permanent total disability award upon a showing of the appropriate change in his condition.
The Company argues that Duncan may only obtain modification of his permanent partial impairment award upon a showing of an increase or decrease in the percentage of impairment.
CONCLUSION Given a showing of a change in condition, Ind.Code 22-3-3-27 authorizes a recovery for permanent total disability following an award for permanent partial impairment.
Several Indiana cases, infra, have recognized but not decided the question of whether an impairment award precludes a later determination of permanent total disability. We shall fearlessly attempt to cut the Gordian knot; a knot which is raised by virtue of the Board's conclusion that:
IT IS FURTHER ORDERED that the Workmen's Compensation Act and the laws construing the same do not permit a claimant to obtain permanent total disability benefits pursuant to a Form 14 application once the claimant has received an original award for permanent partial impairment.
Duncan requested in his original application, filed on October 10, 1974, compensation "for injuries from which he had not yet fully recovered and did not know when he would be fully recovered."
The Board found that he had sustained a strained back from an accident arising out of and in the course of his employment, that his condition had reached a permanent and quiescent state resulting in a 16.8% permanent partial impairment of the man as a whole, that Duncan had received some total temporary disability and compensation for surgery from the company, and that he had sustained an additional 16 weeks of temporary total disability for which he had not been compensated. He was awarded compensation for the past total temporary disability and current permanent partial impairment. No appeal was taken from the award and there were no issues left undecided or pending following the award. See Palmeri v. Riggs-Sargent, Inc. (1970), 147 Ind.App. 430, 261 N.E.2d 887; Smith v. Brown (1924), 81 Ind.App. 667, 144 N.E. 849.
On his subsequent form 14 application he stated on line two: "(t)hat the disability of said employee on account of said injury has increased since the date of said award," and line seven: "(t)hat said permanent partial impairment has increased since the date of said award."
The Board determined that the Act did not allow the original award for permanent partial impairment to be amended to permanent recovery for total disability compensation.
The Workmen's Compensation Act, Ind.Code 22-3-3-10, establishing compensation to be awarded for work-related injuries to employees says in pertinent part:
(b) . . . With respect to injuries in the following schedule occurring on and after July 1, 1971, and before July 1, 1977, the employee shall receive in addition to temporary total disability benefits not exceeding twenty-six (26) weeks on account of said injuries, a weekly compensation of sixty percent (60%) of his average weekly wages, not to exceed one hundred dollars ($100) average weekly wages, for the period stated for such injuries respectively.
(3) For injuries resulting in total permanent disability, five hundred (500) weeks.
(6) In all other cases of permanent partial impairment, compensation proportionate to the degree of such permanent partial impairment, in the discretion of the Industrial Board, not exceeding five hundred (500) weeks.
(7) In all cases of permanent disfigurement, which may impair the future usefulness or opportunities of the employee, compensation, in the discretion of the Industrial Board, not exceeding two hundred (200) weeks, except that no compensation shall be payable under this paragraph where compensation is payable elsewhere in (this section). (hereinafter referred to as Section 10(b)).
The specific language of the statute certainly does not prohibit an award for total permanent disability under subsection (b)(3) subsequent to an award under (b)(6), which is true, for example, under subsection (b)(7) which expressly prohibits compensation to be paid under subsection (b)(7) and elsewhere in the section. 2
Nor does the case law prohibit any such award. See Allen v. United Telephone Company, Inc. (1976), 168 Ind.App. 696, 345 N.E.2d 261 ()
Section 31 of two earlier versions of the present Act 3 dealt with injuries which resulted in permanent partial disability, 4 such as a loss of a finger or an arm or a physical sense. A fixed period of compensation was awarded for such permanent injury "in lieu of all other compensation," therefore an award for temporary total disability could not be recovered for the same injury that qualified under Section 31. In re Denton (1917), 65 Ind.App. 426, 117 N.E. 520; Roush v. W. R. Duncan & Son (1932), 96 Ind.App. 122, 183 N.E. 410. Employees suffering Section 31...
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