Kenwood Erection Co. v. Cowsert

• Decision Date: 23 November 1953
• Docket Number: No. 18430,18430
• Citation: 115 N.E.2d 507,124 Ind.App. 165
• Parties: KENWOOD ERECTION CO. v. COWSERT.
• Court: Indiana Appellate Court

Page 507

115 N.E.2d 507

124 Ind.App. 165

KENWOOD ERECTION CO. v. COWSERT.

No. 18430.

Appellate Court of Indiana, In Banc.

Nov. 23, 1953.

Oscar C. Strom, Charles K. Whitted, Gary, for appellant.

Stiles & Bayor, Gary, for appellee.

ACHOR, Judge.

This is an appeal from an award by the Industrial Board, which granted the appellee compensation in the amount of 70% for permanent partial impairment to the man as a whole.

Doctors for appellant testified the permanent partial impairment of appellee to the man as a whole was 35%. Appellant contends that the award being in excess of that amount is not sustained by any competent evidence and is, therefore, contrary to law.

Admittedly, the finding and award to be sustained must rest upon the testimony of Drs. Leo K. Cooper and Paul C. F. Vietzke, witnesses for appellee, the testimony of appellee himself and the examination of appellee's injuries by the Board. Appellant contends first, that the testimony of appellee as to the percentage of his permanent impairment was not properly admitted for the reason that such fact was within the special and exclusive knowledge of expert medical authority and that appellee was not qualified to testify relative thereto.

Appellant contends further that the conclusions of Drs. Cooper and Bietzke regarding the percentage of appellee's disability or impairment was immaterial and incapable of supporting the award for the reason that it was based upon and related only to the 'disability' of appellee to earn a living rather than to his 'permanent partial impairment,' upon which the award is based.

With respect to the qualification of appellee to testify regarding the percentage of his permanent impairment, we concur with appellant that appellee was not qualified to testify as to the permanency of his condition of impairment. This was a medical question upon which only expert testimony was competent. However, upon this point, all the expert testimony, both for the appellant and appellee, was in agreement that appellee's injuries had reached a permanent and quiescent state. Therefore, it does not appear that appellant was in anywise prejudiced by the admission of unqualified lay testimony as to the permanency of appellee's impairment.

There remains the question as to whether or not appellee was qualified to testify as to the percentage of his impairment. Appellant cites the case of Hurst v. Reeder, 1927, 86 Ind.App. 294, 157 N.E. 101, as authority for the proposition that questions requiring identification or expert knowledge can be answered only by those possessing the requisite skill and knowledge to give their answer probative value. The Hurst case, supra, correctly states the law. However, it is not controlling in the facts before us. Impairment, within the confines of the Workmen's Compensation Act, relates to the functional use of the body. This is a fact regarding which the injured party has personal knowledge and experience. He is, therefore, qualified to speak upon the subject within the scope of the knowledge existent in each individual case. Therefore, the Industrial Board was entitled to receive appellee's testimony and weigh the same with that of medical experts upon the subject. This rule is consistent with that applied previously in the case of Indiana Limestone Co. v. Ridge, 1929, 89 Ind.App. 689, 690, 691, 167 N.E. 617. In that case this court stated:

'It is argued by appellant that there is no evidence to sustain the award. Two reasons are advanced; the first being that the testimony of appellee as to the degree of impairment was but the opinion of a layman, and therefore cannot be considered. We do not so understand the law. Appellee was not testifying as an expert; he was not expressing as an opinion the degree of impairment; he stated as a fact, based upon his own experience, that the impairment of the foot was 75 per cent. The evidence was competent and material; its weight was for the Industrial Board.'

We find no reason to disturb the rule announced in the Indiana Limestone case, supra.

We next consider appellant's contention that the Board committed reversible error by admitting into evidence, over the objection of appellant, the statement of conclusion by Dr. Vietzke, as follows: 'In my opinion the man has suffered about 100% disability to the man as a whole.' Admittedly, there is no provision in our statute for an award for 'disability to the man as a whole.'

Section 40-1303, Burns' 1952 Replacement, part (b), paragraph (3), provides for recovery 'For injuries resulting in total permanent disability, * * *.' whereas, part (b), paragraph (6), provides for recovery 'In all other cases of permanent partial impairment, * * *.' including the man as a whole. (Our italics.) Our courts have held that the award of the Industrial Board must come within the explicit terms of one, and only one, of the above sections of the act.

In the case of Northern Indiana Power Co. v. Hawkins, 1925, 82 Ind.App. 552, 555, 557, 146 N.E. 879, 880, this court stated: '* * * There is no provision authorizing compensation for permanent partial disability or incapacity 'to work and earn wages.' * * * there must be a finding that there is a permanent partial impairment, and not a finding that there is a permanent partial disability to work and earn wages as was found in this case.'

In the case of Edwards Iron Works v. Thompson, 1923, 80 Ind.App. 577, 582, 141...