Dennison v. Martin, Inc.

• Decision Date: 23 October 1979
• Docket Number: No. 2-479A100,2-479A100
• Citation: 182 Ind.App. 491,395 N.E.2d 826
• Parties: Melvin H. DENNISON, Plaintiff-Appellant, v. MARTIN, INC., Defendant-Appellee.
• Court: Indiana Appellate Court

Page 826

395 N.E.2d 826

182 Ind.App. 491

Melvin H. DENNISON, Plaintiff-Appellant, v. MARTIN, INC., Defendant-Appellee.

No. 2-479A100.

Court of Appeals of Indiana, First District.

Oct. 23, 1979.

Edgar A. Grimm, Grimm & Grimm, Auburn, for plaintiff-appellant.

Theodore L. Locke, Jr., Locke, Reynolds, Boyd & Weisell, Indianapolis, for defendant-appellee.

LOWDERMILK, Presiding Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Melvin H. Dennison (Dennison) seeks judicial review of an award entered by the Full Industrial Board of Indiana. The Board awarded Dennison benefits for a 60% Permanent partial impairment but denied recovery for total permanent disability. Dennison argues that the award is contrary to law because it was

entered in lieu of an award for total permanent disability when the evidence proved that he was permanently totally disabled.

FACTS

Dennison was employed by Martin, Inc. as a welder. On October 15, 1974, a steel beam which was being moved by a crane struck Dennison in the head. Dennison sustained injuries to his head, neck and back.

ISSUE

Is the award of the Board denying Dennison benefits for total permanent disability contrary to law?

DISCUSSION AND DECISION

Dennison received a negative award on his claim for total permanent disability benefits.

A claimant bears the burden of proof for his claim. Evans v. Indiana University Medical Center, (1951) 121 Ind.App. 679, 100 N.E.2d 828. A negative award may be sustained by an absence of evidence favorable to the claimant's contentions or by the presence of evidence adverse to the claimant's contentions. Martin v. Monsanto Co., (1975) 166 Ind.App. 5, 333 N.E.2d 828.

In Hilltop Concrete Corp. v. Roach, (1977) Ind.App., 366 N.E.2d 218, 224, Judge Buchanan (now Chief Judge) wrote:

"It is the Board which has the duty to find the nature and extent of a claimant's injury and to grant the appropriate compensation under the Act. . . . In doing so the Board must weigh all the relevant evidence, including any expert testimony and claimant's own statement regarding the extent and character of his injury. . . ." (Citations omitted)

In Hendrickson v. Contracting & Material Co., (1966) 138 Ind.App. 193, 195, 212 N.E.2d 903, 904, the claimant presented evidence at the hearing before the Board, but his employer presented no evidence. Judge Carson, in reviewing the negative award, emphasized that

"(t)he Industrial Board as the trier of the facts had the right to believe that evidence which it finds creditable and by the same token the right to disbelieve such evidence as it does not find worthy. . . ."

Finally, the opinion in Davis v. Webster, (1964) 136 Ind.App. 286, 292, 198 N.E.2d 883, 886, includes this well established rule:

"Before there can be a reversal of a negative award on the evidence, it is necessary that all the evidence appear one way and be so conclusive in nature and character as to force a conclusion in the minds of reasonable men, contrary to that reached by the Industrial Board. . . ." (Citations omitted)

The parties stipulated into evidence a letter from Dr. Cattell dated February 10, 1978, and a letter from Dr. Gumbert dated June 21, 1978. Dr. Cattell's remarks in his letter were based upon his examination of Dennison on February 3, 1978, Dennison's statements made to Cattell, and hospital and other medical records furnished Dr. Cattell by Dennison's attorney. Dr. Gumbert had treated Dennison. Dr. Gumbert based the comments contained in his letter upon his own records and "information" provided by Dennison's attorney. The only other evidence presented was testimony by Dennison and by Dennison's wife.

Both Mr. and Mrs. Dennison stated at the hearing held September 20, 1978, that Dennison had lost considerable weight as a consequence of the injury he suffered on October 15, 1974. He explained that his weight had ranged from 180 to 195 pounds before he was injured and that his weight at the time of the hearing was 154 pounds. Dr. Cattell recorded Dennison's weight as 180 pounds on February 3, 1978. Dr. Gumbert noted that on May 15, 1978, Dennison was having no problems eating and Dennison's weight had been stable at least since April 18, 1978.

Dennison's wife testified that her husband could not drive an automobile, he suffered constant pain in his head, he frequently lost his temper, he had difficulty sleeping, and he suffered from depression. Dennison described the stomach problems he had experienced as a result of medication; he also explained that his feet had become numb due to certain medication which had been prescribed for him. Although Mrs. Dennison stated that they had been informed by doctors at Mayo Clinic that the numbness would be a permanent problem, no report from Mayo Clinic was introduced into evidence. Dennison testified that he suffered from intense headaches and constant pain. Dennison expressed the opinion that his condition had worsened since May 1978 and that he was 100% Impaired as a result of his injury. Dennison expressed certainty that he was unable to maintain employment because he suffered constant pain and could not tolerate being around people.

Dr. Cattell reported in his letter dated February 10, 1978, that Dennison's condition had become stable and noted that "as of today, he (Dennison) feels very poor as far as his neck and his headaches are concerned." Dr. Cattell assessed the permanent partial impairment at 35-45% And expressed the opinion that Dennison is totally...