Jenkins v. Pullman Standard Car Mfg. Co.
| Decision Date | 17 February 1958 |
| Docket Number | No. 19020,19020 |
| Citation | 128 Ind.App. 260,147 N.E.2d 912 |
| Parties | Russell JENKINS, Appellant, v. PULLMAN STANDARD CAR MANUFACTURING CO., Appellee. |
| Court | Indiana Appellate Court |
Leslye S. Stallworth, Michigan City, for appellant.
Thomas C. Millen, Michigan City, for appellee.
This is an appeal from an award of compensation by the Industrial Board of Indiana. This case was previously before this court and was remanded to the Industrial Board for further proceedings. See Jenkins v. Pullman Standard Car Manufacturing Co., 1957, 139 N.E.2d 566. The above decision established the law of this case on the questions therein determined. School City of Hammond v. Moritarity, 1950, 120 Ind.App. 663, 93 N.E.2d 367; Doyle v. Paul, 1949, 119 Ind.App. 632, 86 N.E.2d 98, 87 N.E.2d 885; Daugherty v. Daugherty, 1949, 119 Ind.App. 180, 83 N.E.2d 485, 902.
In the original opinion, Judge Crumpacker, speaking for the court in remanding said cause, stated :
'Thus from the whole record we are of the opinion that the question of the appellant's permanent partial impairment and the degree thereof was an issue in this case and should have been specifically determined by the board.'
It is the general rule of law that when a cause is remanded to the Industrial Board for further proceedings, it becomes discretionary with said Board as to just what the proceedings will be, and its further proceedings so-conducted and its action will not be disturbed on this appeal, unless the record shows an abuse of discretion. School City of Hammond v. Moriarity, supra, and authorities cited.
Under such circumstances, the Full Board may, in its discretion, hear evidence additional to that reviewed by it. School City of Hammond v. Moriarity, supra, 120 Ind.App. at page 669, 93 N.E.2d at page 369.
The record now before us affirmatively shows that in conformity with the mandate of this court in our original opinion, the Full Industrial Board reviewed the evidence introduced in the original hearing and the majority of said Board made the following additional and pertinent finding:
'It is further found that the plaintiff did not sustain any permanent partial impairment on account of the said accidental injury.'
The appellant's valid assigned error in this appeal is, (1) The award of the Full Industrial Board of Indiana is contrary to law. LaReau v. Teibel, Ind.App.1956, 138 N.E.2d 153.
The burden of proving that the petitioner sustained permanent partial impairment by reason of the said accidental injury occurring on or about the eighth day of October, 1953, was, of course, upon the petitioner. George v. Interstate Metal Products, Inc., 1955, 125 Ind.App. 406, 126 N.E.2d 258; Myers v. Oak Hill Coal Co., 1937, 103 Ind.App. 158, 5 N.E.2d 653; Union Sanitary Mfg. Co. v. Davis, 1917, 64 Ind.App. 277, 115 N.E. 676. By its finding, the majority of the Full Industrial Board found that the petitioner did not maintain that burden.
The record discloses considerable conflict in the medicial testimony on the question as to whether a permanent partial impairment did, in fact, exist, and, if so, the cause thereof. It appears that, contrary to the advice of a physician, the appellant submitted to surgical treatment, namely a laminectomy. There appears much conflict in the evidence as to the necessity, advisability and productive effect of such surgery and whether it may not have actually resulted in an adverse condition.
The disability for which compensation is to be paid under the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., must be the result of the accident arising out of and in the course of the employment. Indiana State Housing Association v. Clack, 1942, 110 Ind.App. 504, 507, 39 N.E.2d 451.
In the case of Myers v. Oak Hill Coal Co., supra, 103 Ind.App. at page 164, 5 N.E.2d at page 655, this court said:
'In the case of Swing v. Kokomo Steel, etc., Co. (1920), 75 Ind.App. 124, 130, 125 N.E. 471, 473,...
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Risor v. Nebraska Boiler
...2006). See, also, e.g., Diaz v. Attorney General of State of Tex., 827 S.W.2d 19 (Tex.App. 1992); Jenkins v. Pullman Std. Car Mfg. Co., 128 Ind.App. 260, 147 N.E.2d 912 (1958). 11. See, e.g., State ex rel. City of Grand Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962). See, also, Meist......
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Burton v. Rock Road Const. Co., 20749
...except to the extent it may have been mandated so to do, whether it will hear additional evidence. Jenkins v. Pullman Standard Car Manufacturing Co., 128 Ind.App. 260, 147 N.E.2d 912 (1958), citing School City of Hammond v. Moriarity, 120 Ind.App. 663, 93 N.E.2d 367 There may well be cases ......
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Sheller-Globe Corp., Hardy Division v. Parks
...remand, the appellate decision is binding insofar as it establishes the law of the case. See, e.g., Jenkins v. Pullman Standard Car Manufacturing Co., (1958) 128 Ind.App. 260, 147 N.E.2d 912. In Parks, however, we did not declare as a matter of law that a causal relationship did In fact exi......
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...law of the case. Bd. of Comm'rs of Huntington County v. Bonebrake (1896), 146 Ind. 311, 45 N.E. 470; Jenkins v. Pullman Standard Car Mfg. Co. (1958), 128 Ind.App. 260, 147 N.E.2d 912. Relevant portions of the medical testimony was quoted verbatim in the first opinion on appeal. 149 Ind.App.......