French v. ICI America, Inc.

• Decision Date: 30 June 1976
• Docket Number: No. 2--176A11,2--176A11
• Citation: 349 N.E.2d 715,169 Ind.App. 601
• Parties: Neomia P. FRENCH, Appellant-Plaintiff, v. ICI AMERICA, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

Page 715

349 N.E.2d 715

169 Ind.App. 601

Neomia P. FRENCH, Appellant-Plaintiff, v. ICI AMERICA, INC., Appellee-Defendant.

No. 2--176A11.

Court of Appeals of Indiana, First District.

June 30, 1976.

Evan A. McLinn, New Albany, for appellant-plaintiff.

James E. Bourne, Orbison, O'Connor, MacGregor & Mattox, New Albany, for appellee-defendant.

LYBROOK, Judge.

Neomia French (French) is appealing her award of seven per cent permanent partial impairment, claiming on appeal that the evidence is such that reasonable men could only conclude that in addition to the award she received, she was also entitled to an award of permanent or temporary total disability.

We do not disturb the permanent partial impairment rating of seven per cent, but remand this cause to the Board for specific factual findings as to temporary total disability.

On February 22, 1973, French was involved in an accident arising out of and in the course of her employment by ICI America, Inc. (ICI). She suffered injuries to her back which have allegedly precluded her from entering into any gainful employment. She filed a claim for compensation with the Industrial Board on October 29, 1974, seeking a determination of her status. A hearing was held before a hearing member and on August 15, 1975, he held that French's injury had reached a permanent and quiescent state. In addition it was decided that French had sustained permanent partial impairment of seven per cent. The Full Industrial Board (Board) adopted the finding of the single member on December 18, 1975, and this appeal follows.

French argues on appeal that the Board should have found in her favor on either permanent or temporary disability payments. ICI states that only permanent total disability was asked for in the Form 9 petition. However, an application is deemed amended to conform to the evidence. Bagwell v. Chrysler Corporation (1976), Ind.App., 341 N.E.2d 799.

It must be remembered that in an appeal from the Board this court will not weigh the evidence, and, where there is conflict in the evidence, we consider only the evidence which tends to support the Board's award. Bohn Aluminum & Brass Co. v. Kinney (1974), Ind.App., 314 N.E.2d 780; Allen v. United Telephone Co. (1976), Ind.App., 345 N.E.2d 261.

In the case at bar, two doctors testified; one for French and one for ICI. Dr. Stanley Collis deposed on December 6, 1974, that he saw French in his office on August 26, 1974. After giving French a physical examination, Dr. Collis surmised that she sprained her back. He opined that French could have performed the type of work she was performing when she was injured but that she should gradually work up to it and not really begin until one or two months subsequent to beginning a program of gradual exercises. In addition, Dr. Collis testified that French would have a permanent impairment of about seven per cent to the body as a whole.

Dr. Hassi Shina was French's physician prior to the time of his deposition on February 7, 1975. He stated that he saw French on March 19, 1973, subsequent to her injury on February 22, 1973. He testified that as a result of her accident she has pain radiating into both legs and that generally her condition was worsening. He recommended to her that: (1) it was impossible for her to return to gainful employment; (2) she should see an orthopedic surgeon, and (3) there was nothing that he (Dr. Shina) could contribute to her treatment.

French argues that since her...