Kancs v. Walker, 93A02-9001-EX-77

• Decision Date: 23 July 1990
• Docket Number: No. 93A02-9001-EX-77,93A02-9001-EX-77
• Citation: 557 N.E.2d 670
• Parties: Juris KANCS, Appellant (Defendant Below), v. Wade WALKER, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 670

557 N.E.2d 670

Juris KANCS, Appellant (Defendant Below), v. Wade WALKER, Appellee (Plaintiff Below).

No. 93A02-9001-EX-77.

Court of Appeals of Indiana,

Third District.

July 23, 1990.

Michael V. Gooch, Harrison & Moberly, Indianapolis, for appellant.

J. Frank Hanley II, Indianapolis, for appellee.

HOFFMAN, Presiding Judge.

Appellant Juris Kancs appeals a worker's compensation award in favor of Wade Walker. The facts indicate that Walker fell from a roof while in the course of doing construction work for his employer, Juris Kancs. The parties agreed that Kancs pay Walker's medical bills and temporary total benefits for 135 weeks. On June 5, 1989, the parties stipulated that the Worker's Compensation Board should determine if Walker was entitled to total permanent disability benefits.

A hearing judge for the Worker's Compensation Board awarded temporary total disability benefits to Walker. On review, the Full Worker's Compensation Board awarded Walker disability benefits for 500 weeks.

Kancs raises two issues:

(1) whether the parties and Worker's Compensation Board were bound by the stipulation that the only issue was permanent total disability; and

(2) whether the evidence was sufficient to support the worker's compensation award.

Kancs argues that the parties and Worker's Compensation Board were bound by the stipulation that the only issue was permanent total disability. Prior to the hearing before the Worker's Compensation Board hearing judge, the parties stipulated that the sole issue to be resolved was whether Walker was entitled to total permanent disability benefits. In spite of the stipulation, the hearing judge awarded Walker temporary total disability benefits. The Full Worker's Compensation Board awarded Walker disability for 500 weeks. The Full Board failed to specify under which disability category the award belonged. 500 weeks is an award for permanent total disability and no words of limitation indicating a temporary award were included in the Full Board's order. ¹ The award by the Full Board was for permanent total disability and consistent with the pre-hearing stipulation. See IND. CODE Sec. 22-3-3-10 (1989 Supp.).

Kancs contends the evidence was insufficient to support the worker's compensation award. The standard of review for worker's compensation awards was stated in Dane Trucking Co. v. Elkins (1988), Ind.App., 529 N.E.2d 117, 120-121:

"A reviewing court is reluctant to reverse awards of worker's compensation granted by the Industrial Board. It is the province of the Board to hear and weigh the evidence, determine the evidentiary facts and from such facts draw reasonable inferences to arrive at the ultimate fact. The finding of the ultimate fact becomes a question of law for the determination of the reviewing court only where there is no conflict in the evidence and where there can be only one reasonable inference drawn from the evidentiary facts established by the uncontradicted evidence. Joseph E. Seagram & Sons, Inc. v. Willis (1980), Ind.App., 401 N.E.2d 87, 91.

The reviewing court cannot reverse the findings of the Industrial Board unless it conclusively appears that the evidence upon which the Board acted was devoid of probative value or was so proportionately inadequate that the finding could not rest on a rational basis. Only if the evidence is so inadequate that a reasonable man would be compelled to reach a contrary result will the decision of the Board be overturned. Wanatah Trucking v. Baert (1983), Ind.App., 448 N.E.2d 48, 50."

The Worker's Compensation Act is liberally construed in favor of the employee. R.L. Jeffries Trucking Co., Inc. v. Cain (1989), Ind.App., 545 N.E.2d 582, 588.

Permanent total disability has been defined as follows:

"A total disability to be permanent must be one which so destroys or shatters a workman's wage earning capacities as to leave him unable to resume reasonable types of employment for the remainder of his life. Since this form of disability is treated in the same section with other harms comprising threats to wage-earning power such as impairments and lost uses, total permanent disability must be taken to require a greater incapacity than that produced by any other of the scheduled harms. However, it is not necessary to a showing of total permanent disability that the workman prove an utter inability to do anything with the remains of his body. The believe-it-or-nots demonstrate that even the most hopeless human wrecks have on occasion developed obscure means for obtaining livelihood. It is sufficient if the workman can show that he has been so incapacitated by his injuries that he cannot carry on reasonable types of employments. The reasonableness of the workman's opportunities will be measured by his physical and mental fitness for them and by their availability."

Perez v. U.S. Steel Corp. (1977), 172 Ind.App. 242, 245-246, 359 N.E.2d 925, 927-928, quoting B. Small, Workmen's Compensation Law of Indiana Sec. 9.4, pp. 244-245 (1951 Ed.).

In the present case, a deposition and medical reports made by Dr. Robert Cravens, Walker's treating orthopedic surgeon, were admitted into evidence. The following report concluding that Walker was not a candidate for vocational services was written by Marcia Inselberg, a certified rehabilitation counselor "Vocational Summary--Wade A. Walker

Wade A. Walker is a 30 year old male who, during the course of his employment in December 1984, fell from a roof landing on his feet on concrete. He was immediately hospitalized for the injuries suffered in this fall. Subsequently, he has been operated on numerous times and has been followed by Dr. Robert E. Cravens.

Medical records indicate that Mr. Walker currently suffers from multiple problems as a direct result of this accident. His right foot has been fused in the heel and his 'foot (is) incapable of rocking back and forth to sustain that type of motion that is ordinarily taken up by the heel in ordinary weight bearing. This makes it a little bit more difficult to walk on uneven ground because you can't compensate for the unevenness of the foot.' (Cravens 1/9/89) Further, his left ankle is fused completely; thus, making walking on a sustained basis very difficult. Dr. Cravens quotes in his report that he is concerned about (P. 11) Wade's use of energy in walking 'would have to be more than normal because of the limited motion of the ankle on the left side.' He is also unable to take a normal stride length. In addition, with these documented contra-indications to walking and/or standing for periods of time, Mr. Walker also suffers from a slipped disc and related back problems, all since the fall from the roof. Dr. Cravens performed a laminectomy and disectomy (May 1988) and follow-up anti-inflammatory medication to try to reduce the pains Mr. Walker suffers in his back, legs, and hips. Further, Dr. Cravens discusses the predicted onset of arthritis.

It is important to note for vocational purposes that, at this stage, we are...