Allen v. United Telephone Co., Inc.

Decision Date15 April 1976
Docket NumberNo. 2--1174A270,2--1174A270
Citation168 Ind.App. 696,345 N.E.2d 261
PartiesFlossie Irene ALLEN, Appellant, v. UNITED TELEPHONE COMPANY, INC., Appellee.
CourtIndiana Appellate Court

Thaddeus R. Spurgeon, Oaklandon, for appellant.

John T. Lorenz, Frank I. Magers, Kightlinger, Young, Gary & DeTrude, Indianapolis, for appellee.

SULLIVAN, Judge.

Appellant Flossie Irene Allen (Allen) fell and injured her right hip on December 11, 1967 in an accident arising out of and in the course of her employment with appellee United Telephone Company, Inc. (United). She was released from the hospital on February 1, 1968. Upon her arrival home, Allen attempted to walk from a chair to her bed, and in doing so fell and broke her right leg. United paid all of the medical expenses from these two occurrences except for the services of a practical nurse hired by Allen for 11 weeks following the second fall. United also began paying temporary total disability benefits to Allen beginning December 12, 1967. While attending a funeral, Allen's injured leg collapsed under her and she fell again in November 1970, breaking her knee cap. United has paid no medical expenses incurred as a result of that accident. At United's suggestion, Allen filed for retirement benefits under United's group pension plan and began receiving benefits on January 1, 1969, when she was 62 years old. She also began drawing Social Security benefits about this time. United continued to pay temporary disability benefits to Allen until November 4, 1969, at which time it had paid 99 weeks of disability benefits.

Allen filed a Form 9 Application for adjustment of her compensation claim with the Industrial Board on December 15, 1969. She alleged that she was totally disabled and did not know how long the disability would last, that she and United were unable to agree on the amount of compensation payable and the duration of time for which it was payable, and asked that disability payments be resumed and that she be given compensation for 30% permanent impairment of the person as a whole.

Being dissatisfied with the determination of the single hearing member, Allen sought review by the Full Industrial Board, which rendered the following findings and award:

'The Full Industrial Board having heard the arguments of counsel and having reviewed all the evidence in said cause and being duly advised in the premises therein, now finds:

That on the 11th day of December, 1967, plaintiff was in the employ of the defendant at an average weekly wage of $88.80; that on said date she sustained a personal injury by reason of an accident arising out of and in the course of her employment with the defendant.

It is further found that on said date plaintiff fell suffering bodily injuries involving her right hip while making a bank deposit for her employer.

It is further found that as a result of said fall, plaintiff received extensive hospital and medical care, of which the defendant has paid the sum of $6,857.60.

It is further found that plaintiff was paid temporary rotal disability benefits at the rate of $51.00 per week for a period of 99 weeks.

It is further found that on February 1, 1968, after plaintiff had been released from the hospital following the original injury, she fell at home, suffering a fractured femur of the right leg.

It is further found that in September, 1970, plaintiff fell while attending her husband's sister's funeral, suffering a fractured kneecap of the right leg.

It is further found that plaintiff filed for voluntarily retirement benefits at the age of 62, beginning January 1, 1969, and has received retirement benefits from the company since said date.

It is further found that at the age of 62 the plaintiff filed and has received retirement benefits under the Social Security program.

It is further found that plaintiff's condition, as a result of said accidental injury of December 11, 1967, has now reached a permanent and quiescent state and has resulted in a 30% permanent partial impairment to the right lower extremity.

It is further found that the plaintiff incurred the services of a Mrs. Hennis, a practical nurse, for a period of 11 weeks following her release from the hospital after being confined on the second accident. There was no evidence that said services were ordered by an attending physician for the injuries received on December 11, 1967.

The Full Industrial Board now finds for the plaintiff and against the defendant on plaintiff's Form 9 Application filed December 15, 1969.

AWARD

IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that the plaintiff shall have and recover of and from the defendant compensation at the rate of $51.00 per week beginning December 11, 1967, for a specific period of 67.5 weeks for her 30% permanent partial impairment to the right lower extremity.

It is further ordered that the defendant shall have credit for 73 weeks compensation paid in excess of the statutory 26 weeks for temporary total disability.

It is further ordered that all accrued payments shall be brought up to date, paid in cash and in a lump sum without the deduction of interest.

It is further ordered that the defendant shall pay the costs, if any, taxed in said cause.

It is further ordered that the fees of the plaintiff's attorney, shall be: a minimum sum of $25.00; and, in addition thereto; 20% upon the first $1,000. recovered; 15% upon the second and third $1,000. recovered; and 10% upon all sums recovered in excess thereof; said fees to be paid by defendant direct to plaintiff's attorney, THADDEUS R. SPURGEON, with credit to the defendant against the compensation herein awarded plaintiff for all sums paid out as attorney fees in accordance with this award.'

It is from this award that Allen appeals.

Allen complains that the award of the Industrial Board is so ambiguous that she does not know what, if any, compensation she is entitled to receive. She also argues that the Board erred in not awarding compensation for her second and third falls, and for failing to order reimbursement of the payments she made for the services of the practical nurse. Finally, she asserts that United has acted in bad faith, and should therefore be ordered to pay additional attorney fees.

United Answers that the Board, in awarding compensation for 30% of the right lower extremity, considered all three accidents; that that award was sustained by the evidence; that the nursing services were not proved to have been necessary and hence not compensable; and that it acted at all times diligently and in good faith.

This court will not weigh the evidence and, where there is a conflict in the evidence, considers only the evidence which tends to support the Board's award. Bohn Aluminum & Brass Co. Plant #9 v. Kinney (2d Dist. 1974), Ind.App., 314 N.E.2d 780; Callahan v. Lovelace Truck Service (3d Dist. 1973), Ind.App., 301 N.E.2d 801.

The Board's finding that Allen's injuries resulted in a 30% permanent partial impairment to the right lower extremity is supported by the testimony of Dr. RappWho examined Allen after the second fall and again after the third fall. Since his evaluation included injuries from all three falls, Allen's argument that the Board failed to consider the last two accidents Rapp, who examined Allen after the second Board did not order reimbursement for medical expenses incurred as a result of the third accident, there is no evidence in the record of what those expenses were.

Allen's claim for reimbursement for the services of the practical nurse also must fail. The Workmen's Compensation Act provides that the employer must furnish nursing services to the injured employee if the attending physician or the Industrial Board deem the services necessary. Ind.Ann.Stat. 22--3--3--4 (Burns Code Ed. 1974). 1 Nothing in the record indicates that a physician ordered the nursing services. Allen and her husband testified that they hired the nurse because Allen was unable to take care of herself or do her chores when she came home from the hospital following the second accident. It was within the Board's discretion to find, as it did here, that the services were not proved to be necessary within contemplation of the statute.

Allen also argues that the Board erred in not finding her permanently totally disabled. In support of her argument, she points to a letter her attending physician wrote to United's insurance company iN december of 1968 in which he said he doubted she would ever return to work, and to her own testimony that she was unable to work. However, the Board accepted Dr. Rapp's...

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