Hill v. Worldmark Corporation/Mid America Extrusions Corp.

Decision Date31 May 1995
Docket NumberNo. 93S02-9505-EX-617,93S02-9505-EX-617
Citation651 N.E.2d 785
PartiesJames J. HILL, Appellant-Plaintiff, v. WORLDMARK CORPORATION/MID AMERICA EXTRUSIONS CORP. Appellee-Defendant.
CourtIndiana Supreme Court

DICKSON, Justice.

This worker's compensation appeal centers on the standard of review to be applied to a negative judgment entered by the Worker's Compensation Board.

Plaintiff-appellant James J. Hill was employed by the defendant-appellee, Worldmark Corporation/Mid America Extrusions Corporation ("Worldmark"), when he suffered an accidental injury on January 8, 1991, while lifting an object in the course of his employment. Following an initial diagnosis of lumbosacral strain, the plaintiff received physical therapy, work conditioning, work hardening, and further back rehabilitation. The treating orthopedic surgeon, John J. Beghin, M.D., rendered an opinion on August 15, 1991, that Hill had reached maximum recovery, assigned him a three percent whole body permanent partial impairment rating, and authorized him to resume normal activities without restriction. On the basis of this opinion, Worldmark terminated Hill's worker's compensation benefits as of August 18. Plaintiff continued to seek medical treatment and did not return to work. Unable to reach agreement regarding further worker's compensation benefits, Hill filed an Application for Adjustment of Claim with the Indiana Worker's Compensation Board, alleging that he was entitled to further medical expenses and seeking an award of benefits for permanent total disability. At the ensuing hearing, Worldmark and Hill stipulated that Hill had sustained injury to his person by reason of an accident in the course and scope of his employment with Worldmark on January 8, 1991, and that Worldmark had provided statutory medical attention, supplies, and benefits for temporary total disability for the period through August 18, 1991. The hearing officer thereafter found Hill's permanent partial impairment rating to be seven percent of the entire person but otherwise denied his claim, finding in part "that Petitioner has failed to prove an entitlement to disability or statutory medical after August 18, 1991." Record at 11. The plaintiff sought review by the full Worker's Compensation Board. Following a further hearing, the full Board sustained and adopted the hearing officer's findings and conclusions.

The plaintiff thereafter appealed, alleging that the decision of the Worker's Compensation Board was based on evidence devoid of probative value or so proportionately inadequate that the conclusion could not be supported on any rational basis. In an unpublished memorandum decision, the Court of Appeals did not reach the merits of the plaintiff's claim but remanded to the Board with instructions to make specific findings of fact regarding Hill's ability to obtain reasonable types of employment in light of his back injury. The Board then entered further findings. After additional briefing by the parties, the Court of Appeals then issued its opinion reversing the decision of the Board. Hill v. Worldmark Corp./Mid America Extrusions Corp. (1994), Ind.App., 632 N.E.2d 1173. Perceiving that the essential question before the Board was whether Hill was disabled, the Court of Appeals reversed on grounds of insufficient supporting findings:

The evidence of record in this case does not support a finding that Hill is capable of engaging in reasonable forms of work activity, a necessary predicate in determining whether or not Hill is disabled. Because the conclusion that Hill is not permanently totally disabled is unsupported by the Findings, the Board's decision must be reversed.

Hill, 632 N.E.2d at 1178. This misperceives the nature and character of the Board's role in deciding this case. Had the Board made an affirmative finding of permanent total disability, such a conclusion would have needed to be properly supported by findings. Here, on the other hand, the Board's conclusion was a negative one--that Hill had failed to prove his claim of permanent total disability. The Board's decision need only be supported by findings related to the issue of proof, not to the factual question of Hill's disability. That is, for the Board to find against Hill, it need only determine that Hill had failed to prove that he was disabled; the Board need not determine that Hill was in fact not disabled.

Both parties agree that the applicable standard of review is found in Perez v. U.S. Steel Corp. (1981), Ind., 428 N.E.2d 212. Like Hill, Perez had appealed a decision of the Board awarding him benefits for permanent partial impairment but denying his claim for permanent total disability. 1 In Perez, this Court addressed whether the evidence supported the Board's findings and conclusions denying the claim of permanent total disability. The opinion began by noting that a worker seeking to establish permanent total disability is required to prove that he or she "cannot carry on reasonable types of employment." Perez, 428 N.E.2d at 215-16. We noted that the claimant bears the burden of proving the existence of this condition in order to justify recovery for "permanent total disability," and that, in an appeal from a negative judgment, the following standard applies:

[W]e will not weigh the evidence nor judge the credibility of witnesses. Rather, we examine the record only to determine whether there [are] any substantial evidence and reasonable inferences which can be drawn therefrom to support the Board's findings and conclusion. Only if the evidence is of a character that reasonable [persons] would be compelled to reach a conclusion contrary to the decision of the Board will it be overturned.

Perez, 428 N.E.2d at 216. Noting that there were conflicts in the expert testimony presented to the Board, we applied the standard of review and upheld the Board's findings and conclusions. We concluded that "Perez's contention that the evidence warrants a result contrary to that reached by the Board and that, as a matter of law, he suffered total permanent disability, must fail." Perez, 428 N.E.2d at 216. We affirmed the Board's denial of additional benefits.

Subsequent decisions have repeatedly recognized and applied this standard for the appellate review of negative judgments in worker's compensation cases. See, e.g., Donahue v. Youngstown Sheet and Tube Co. (1985), Ind., 474 N.E.2d 1013, 1014; Rensing v. Indiana State Univ. Bd. of Trustees (1983), Ind., 444 N.E.2d 1170, 1172; Rork v. Szabo Foods (1982), Ind., 439 N.E.2d 1338, 1341. In Rork we emphasized that "the factfinder is free to accept or reject expert opinion testimony." Rork, 439 N.E.2d at 1343. We there concluded that the evidence, "together with a lack of any evidence to establish the general unavailability of employment opportunities suited to Rork's condition," required us to affirm the Board's conclusion that Rork was not permanently totally disabled. Id.

Hill contends that evidence of his inability to walk extensively, stand or sit for long periods of time, or lift heavy objects; his illiteracy; and his lack of arithmetic ability has "extinguished any vocational possibilities" he might have and "meets the test for permanent total disability." Appellant's Brief in Opposition to Transfer at 10.

The evidence supporting the Board's decision includes testimony from William L. Driehorst, M.D., Hill's treating physician after Dr. Beghin, who testified that Hill is able to work a four-hour day. Record at 144, 228. During that day, Dr. Driehorst found, Hill can spend between one and two hours standing, between one and two hours sitting, and between one and four hours walking short distances. Id. Dr. Driehorst's testimony also established that Hill could spend up to one-third of his day engaged in various activities including squatting, bending or stooping, lifting 8.2 pounds above his shoulders, lifting 12.6 pounds from chair height to desk height, carrying 9.3 pounds in either arm, pushing 10.4 pounds with both arms, pulling 10.4 pounds with both arms, using his left foot, and grasping firmly with both hands; that he could spend up to two-thirds of a workday lifting six pounds from chair height to desk height and/or using his right foot; and that he could spend up to one hundred percent of his time with his head and neck either flexing, rotating, or remaining in a static position and up to one hundred percent of his time engaged in either "simple" or "fine" grasping. Record at 31-32, 228-29. Such testimony discredits Hill's claim that he is permanently unable to "carry on reasonable types of employment." See Perez, 428 N.E.2d at 215-16.

When the case was remanded to the Board to make specific findings regarding Hill's ability to obtain reasonable types of employment in light of his injury, the Board responded with findings consistent with its proper role. It noted that Hill's treating physician had authorized him to resume normal activities without restriction, that no expert vocational evidence had been presented in support of Hill's claim of total disability, that Hill's medical evidence of permanent disability ought not be given weight, that there was no other medical evidence of Hill's ability or inability to work, and that Hill "was able to return to reasonable types of employment on August 18, 1991." Supplemental Record at 14. In addition, the Board's initial acceptance and adoption of the hearing officer's finding thereby incorporated the finding "that [Hill] has failed to prove an entitlement to disability or statutory medical after August 18, 1991." Record at 11.

As claimant, Hill bore the burden of proving that he is eligible for worker's compensation benefits for permanent total disability. Perez, 428 N.E.2d at 216. Our review of the Board's findings and the relevant evidence in the record...

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