Dennison v. Martin, Inc., No. 2-479A100

Docket NºNo. 2-479A100
Citation182 Ind.App. 491, 395 N.E.2d 826
Case DateOctober 23, 1979
CourtCourt of Appeals of Indiana

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.

[182 Ind.App. 492] 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

Page 827

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. [182 Ind.App. 493] 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...

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9 practice notes
  • Duncan v. George Moser Leather Co., No. 2-479A112
    • United States
    • Indiana Court of Appeals of Indiana
    • August 28, 1980
    ...then compensates for the loss to the permanently impaired party. (Emphasis added.) See also Dennison v. Martin, Inc. (1979), Ind.App., 395 N.E.2d 826. So once an injury reaches a permanent and quiescent state, an assessment (pursuant to an original form 9 application or agreement) may be ma......
  • Coachmen Industries, Inc. v. Yoder, No. 2-1179A357
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...due diligence existed was thus honored when the conclusion was supported by the findings. See Dennison v. Martin, Inc., (1979) Ind.App., 395 N.E.2d 826; Allen v. United Telephone Co., (1976) Ind.App., 345 N.E.2d 261; Smith v. Graver Tank & Manufacturing Co., (1973) Ind.App., 302 N.E.2d In t......
  • K-Mart Corp. v. Morrison, K-MART
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1993
    ...period ends, and the permanent injury can be assessed for compensation purposes." Id., see also Dennison v. Martin, Inc. (1979), 182 Ind.App. 491, 395 N.E.2d 826, 828 (When the injury reaches a permanent and quiescent state, an assessment is made of the extent of permanent injury. The perma......
  • Rork v. Szabo Foods, No. 2-681A190
    • United States
    • Indiana Court of Appeals of Indiana
    • October 29, 1981
    ...(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 Assuming, arguendo, that the Board must weigh medical and non-medical fact......
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9 cases
  • Duncan v. George Moser Leather Co., No. 2-479A112
    • United States
    • Indiana Court of Appeals of Indiana
    • August 28, 1980
    ...then compensates for the loss to the permanently impaired party. (Emphasis added.) See also Dennison v. Martin, Inc. (1979), Ind.App., 395 N.E.2d 826. So once an injury reaches a permanent and quiescent state, an assessment (pursuant to an original form 9 application or agreement) may be ma......
  • Coachmen Industries, Inc. v. Yoder, No. 2-1179A357
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...due diligence existed was thus honored when the conclusion was supported by the findings. See Dennison v. Martin, Inc., (1979) Ind.App., 395 N.E.2d 826; Allen v. United Telephone Co., (1976) Ind.App., 345 N.E.2d 261; Smith v. Graver Tank & Manufacturing Co., (1973) Ind.App., 302 N.E.2d In t......
  • K-Mart Corp. v. Morrison, K-MART
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1993
    ...period ends, and the permanent injury can be assessed for compensation purposes." Id., see also Dennison v. Martin, Inc. (1979), 182 Ind.App. 491, 395 N.E.2d 826, 828 (When the injury reaches a permanent and quiescent state, an assessment is made of the extent of permanent injury. The perma......
  • Rork v. Szabo Foods, No. 2-681A190
    • United States
    • Indiana Court of Appeals of Indiana
    • October 29, 1981
    ...(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 Assuming, arguendo, that the Board must weigh medical and non-medical fact......
  • Request a trial to view additional results

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