E. F. P. Corp. v. Pendill, 2-880A251

• Decision Date: 04 December 1980
• Docket Number: No. 2-880A251,2-880A251
• Citation: 413 N.E.2d 279
• Parties: E. F. P. CORPORATION, Appellant-Defendant, v. Terry PENDILL, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 279

413 N.E.2d 279

E. F. P. CORPORATION, Appellant-Defendant, v. Terry PENDILL, Appellee-Plaintiff.

No. 2-880A251.

Court of Appeals of Indiana.

Dec. 4, 1980.

R. Kent Rowe, Lewis C. Laderer, Jr. and Paul M. Oleniczak, Rowe & Laderer, South Bend, for appellant-defendant.

Edward N. Kalamaros, Edward N. Kalamaros & Associates, South Bend, for appellee-plaintiff.

ROBERTSON, Presiding Judge.

E. F. P. Corporation appeals the decision of the Indiana Industrial Board awarding temporary total disability benefits to Terry Pendill for the recurrence of an injury to his neck, arising out of and in the course of his employment with E. F. P.; the recurrence happening after Pendill was fired from E. F. P. for reasons unrelated to his injury.

The following facts were stipulated by the parties. On October 31, 1979, Pendill, an employee of E. F. P., sustained a neck injury arising out of and in the course of his employment. Pendill and E. F. P. entered into a Form 12 Agreement, approved by the Board. As a result, Pendill received temporary total disability payments until November 26, 1979, at the rate of $130.00 per week. Pendill returned to work on November 26, 1979, after receiving a release from his doctor. On December 10, 1979, Pendill was fired by E. F. P. for reasons unrelated to his injury. On December 21, 1979, Pendill consulted a neurologist, at the suggestion of his original doctor. The neurologist determined that Pendill was unable to work and gave Pendill a disability slip on this date, and on two later occasions. Pendill's original physician also provided disability slips during this time.

On February 1, 1980, Pendill filed a Form 14, application for review of his original award due to the recurrence of his injury. At a single member hearing on this application, the sole issue, as stipulated, was whether Pendill was entitled to receive temporary total disability benefits for the period from December 21, 1979; that is, whether he was entitled to receive benefits from the date when his injury recurred despite the fact he was no longer employed by E. F. P. This decision was upheld on appeal to the full Industrial Board. E. F. P. has appealed this affirmation and the same issue is now before us.

When reviewing a decision by the Industrial Board of Indiana, we of course may only reverse their decision when the evidence, and all reasonable inferences therefrom, are so conclusive as to require a contrary decision. See e. g. Talas v. Correct Piping Co., Inc. (1980) Ind.App., 409 N.E.2d 1223. (transfer pending).

A similar situation was dealt with by this court in Wolfcale v. Grush (1944) 115 Ind.App. 155, 57 N.E.2d 438. In that case, the employee suffered a hernia in the course of his employment and received temporary total disability payments as part of his compensation award. Subsequently, after the employee left his original employer and began work for another company, his injury recurred. The Board awarded additional temporary total disability payments from the date of the recurrence. The Board's decision was affirmed on appeal.

The court said:

We quite agree with the appellant that, if the appellee's present hernia is not a recurrence of the first one but on the contrary is a new and distinct injury, there can be no recovery because the undisputed evidence discloses that he suffered the current affliction at a time when he was not in the appellant's employ. We cannot agree, however, with the contention that there is no evidence tending to prove a recurrence of the original injury .... This testimony, we think, is amply sufficient to support the finding of the ultimate fact that the appellee's present condition is a recurrence of that for which he was awarded compensation ... therefore an injury for which the appellant is liable.

115 Ind.App. at 158, 57 N.E.2d at 439.

Mindful of this case, we have examined the relevant provisions of the current Indiana Workmen's Compensation Act. We have found no restrictive language which limits recovery of total temporary disability payments to situations where the injured employee remains with his...