Coachmen Industries, Inc. v. Yoder

• Decision Date: 29 June 1981
• Docket Number: No. 2-1179A357,2-1179A357
• Citation: 422 N.E.2d 384
• Parties: COACHMEN INDUSTRIES, INC., Appellant (Defendant Below), v. Joe L. YODER, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 384

422 N.E.2d 384

COACHMEN INDUSTRIES, INC., Appellant (Defendant Below), v. Joe L. YODER, Appellee (Plaintiff Below).

No. 2-1179A357.

Court of Appeals of Indiana, Second District.

June 29, 1981.

Robert T. Sanders, III, Byron & Daniels, Elkhart, for appellant.

Edgar A. Grimm, Grimm & Grimm, Auburn, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant Coachmen Industries, Inc. (Coachmen) appeals from an award by the Full Industrial Board of Indiana (Board) to plaintiff-appellant Joe L. Yoder (Yoder), contending that Yoder's claim is barred by the untimely filing of his application; that the Board's finding of 25% permanent partial impairment is not supported by the evidence; and that the Board's finding of bad faith and dilatory conduct in the course of settlement negotiations is not supported by the evidence.

We affirm in part and reverse in part.

FACTS

This case is ready for decision on the merits after having been remanded to the Board for further findings.

The relevant facts leading to the present appeal are:

Yoder was injured in a truck accident while in the course of his employment for Coachmen, receiving injuries to his neck, eye, ear, nose, and arm. At the time of the accident, May 14, 1974, Yoder was earning an average weekly wage in excess of the maximum amount used in computing benefits under the Workmen's Compensation Act. ¹ A Form 12 Agreement providing for temporary total disability payments was entered into by Yoder and Coachmen, and approved by the Board soon after the accident. This agreement provided for temporary total disability payments at the rate of $75 per week, but Coachmen only made payments for 62 weeks ($4,650 total) until about July 22, 1975 and refused to make payments thereafter.

Coachmen offered no explanation for the discontinuance of these payments. The agreement had not provided for a fixed termination date, the statutory maximum in payments had not been exceeded, the parties had not agreed to terminate payments, and the Board had not approved any discontinuance of payments under the Form 12 Agreement.

Frustrated in his efforts to deal with Coachmen, Yoder contacted attorney Edgar Grimm (Grimm) for assistance. On September 3, 1975, Grimm wrote to Coachmen's insurance carrier, Commercial Union Assurance Company (Commercial), seeking copies of Yoder's medical reports in Commercial's file.

A Mrs. Eby (Eby) replied in the name of Commercial, requesting that release forms be signed by Yoder so medical reports could be sent to Grimm. After Grimm had returned the completed forms to Eby, she sent on October 13th what she claimed were all reports in Commercial's file, and wrote on October 31st that a total evaluation of Yoder's medical condition would be necessary.

Other medical reports were later sent to Grimm from Eby. In particular, one evaluation by Dr. Ralph Ganser, received on November 13th, rated the injury to Yoder's right ear at 50% permanent partial impairment. Whether these reports received after October 31st were on file when Eby said that all reports in Commercial's file had been sent to Grimm is unclear from the record.

Grimm again wrote to Eby on April 2, 1976, expressing his belief that Yoder's injuries probably had reached a permanent, quiescent state, and indicating his desire to settle the claim. The next significant correspondence was a letter from Eby inquiring why Yoder had not kept a June 14, 1976 appointment with Dr. Martin Feferman, who was to have made a total evaluation of Yoder's condition.

Although Grimm twice replied that Yoder had kept the appointment, Eby did not respond to his letters. After much fruitless correspondence, Grimm finally obtained in December, 1976 a copy of the report from Dr. Feferman, who asserted that the report had been sent to Eby on August 11, 1976.

Grimm immediately wrote to Eby. Emphasizing that Dr. Feferman had rated Yoder's permanent partial impairment at approximately 20% (10% impairment to the body as a whole because of his neck injury, plus at least 10% due to his eye and head injuries) and that Dr. Ganser had found a 50% impairment to the right ear, Grimm demanded permanent partial impairment benefits.

Commercial refused any payments for impairment, so Yoder filed on December 30, 1976 a Form 14 Application for Review of Award on Account of Change in Condition (Form 14 Application). A Single Hearing Judge of the Board entered an award for 25% permanent partial impairment to the body as a whole, plus costs, medical expenses, attorney's fees, and $150 for additional attorney's fees based on Coachmen's bad faith and dilatory conduct (through Commercial) in settling the claim. Omitting formal parts, the Single Hearing Judge's entry reads:

STIPULATION

The parties stipulated that on or about May 14, 1974, the plaintiff was employed by defendant at an average weekly wage in excess of the then prevailing statutory maximum. It was further stipulated that on said date the plaintiff received personal injury by accident arising out of and in the course of his employment and that pursuant to a Form 12 Agreement plaintiff was paid 62 weeks of temporary total disability at the rate of $75.00 per week. It was further stipulated that plaintiff paid $5,160.94 in statutory medical expense; that defendant had notice of the accident, and that Dr. Ganser had rated plaintiff as having a 50% loss of hearing of his right ear.

ISSUES

Issues to be determined by the Board are:

1. Permanent partial impairment, if any.

2. A medical bill from Dr. Busis and travel expense to visit said doctor.

3. Defendant's bad faith in settling or adjusting the claim.

4. Defendant's affirmative defense (untimely filing).

SUMMARY OF EVIDENCE

Plaintiff, Joe L. Yoder, testified as to the details concerning his accident and the treatments after his accident. He testified as to his visits to Dr. Busis, and that his last visit produced an office expense of $50.00 as well as 720 miles travel in visiting Dr. Busis.

Edgar Grimm testified in narrative form as to the course of his handling of the case, and in particular that in November of 1975 he received a letter from the insurance company indicating that Dr. Ganser had rated the plaintiff as having a 50% permanent partial impairment of the hearing of his right ear.

Martin Feferman testified in person as to his examinations of plaintiff and his estimates as to permanent partial impairment. Martin Feferman also testified by deposition that he was a neurosurgeon and examined plaintiff first on June 14, 1976, and as to the results of his examination. He further testified as to certain reactions of the plaintiff which he described as being emotional reactions, and indicated that he would rate plaintiff as having a 10 to 15% permanent partial impairment of the body as a whole for all of his symptoms.

On cross-examination he indicated that his impairment evaluation did not include a component for hearing loss.

FINDINGS

Said Hearing Judge, having heard all the evidence in said cause, the stipulation of the parties, and having reviewed the entire file and being duly advised in the premises therein, now adopts the stipulation as the Board's findings.

It is further found that Defendant's Affirmative Defense should be and hereby is overruled.

It is further found that the bill of Sidney Busis in the amount of $50.00 constitutes statutory medical expense and the same should be paid by the defendant, and further plaintiff should be paid for his travel expense for 720 miles at the then applicable rate.

It is further found that plaintiff has suffered a 25% permanent partial impairment to the body as a whole.

It is further found that defendant was in possession of a medical report which indicated a 50% permanent partial impairment of plaintiff's hearing in his right ear, and failed to offer plaintiff benefits for permanent partial impairment based on said rating.

It is further found that this action constitutes bad faith and lack of due diligence on the part of the defendant, and that plaintiff's attorney, Edgar A. Grimm, should be entitled to attorney's fees on account of said bad faith but that the amount of said attorney's fees fixed and awarded on account of lack of diligence or because of bad faith is limited to the sum of $150.00.

It is further found that plaintiff's attorney, Edgar A. Grimm, shall be entitled to the attorney's fee based on the schedule hereinafter set out with the exception that the $150.00 previously referred to shall not be charged against the Award of the plaintiff herein.

AWARD

IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Industrial Board of Indiana that there be awarded to plaintiff as against the defendant 125 weeks of compensation at the rate of $60.00 per week for his 25% permanent partial impairment of the body as a whole less 36 weeks at the rate of $75.00 per week which is the number of weeks temporary total disability was paid in excess of the statutory 26 weeks.

IT IS FURTHER ORDERED that defendant pay the bill of Dr. Sidney Busis in the amount of $50.00, and reimburse plaintiff for travel expense for 720 miles at the then applicable rate.

IT IS FURTHER ORDERED that all payments of compensation shall be brought up to date, paid in cash and in a lump sum.

IT IS FURTHER ORDERED that defendant shall pay the costs, if any, assessed in this cause.

IT IS FURTHER ORDERED that all monies payable by this Award shall be paid direct to plaintiff except as hereinafter ordered paid to plaintiff's attorney.

IT IS FURTHER ORDERED that attorney fees shall be paid as follows: a minimum fee of $50.00; and 20% upon the first $5,000 recovered; 15% upon the second $5,000 recovered, and 10% upon all recovery in excess of $10,000; said fees to be paid by the defendant direct to plaintiff's attorney, Edgar A. Grimm, with credit to defendant against compensation herein awarded plaintiff for all sums paid Record at 172-73. The award and findings were...