McCammon v. Youngstown Sheet and Tube Co.

• Decision Date: 28 October 1981
• Docket Number: No. 4-681A18,4-681A18
• Citation: 426 N.E.2d 1360
• Parties: Glen McCAMMON, Appellant (Plaintiff Below), v. YOUNGSTOWN SHEET AND TUBE COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1360

426 N.E.2d 1360

Glen McCAMMON, Appellant (Plaintiff Below), v. YOUNGSTOWN SHEET AND TUBE COMPANY, Appellee (Defendant Below).

No. 4-681A18.

Court of Appeals of Indiana, Third District.

Oct. 28, 1981.

John A. Hovanec, Gary, for appellant.

James E. Schreiner, Tinkham, Schreiner & Bloom, P.C., Hammond, for appellee.

HOFFMAN, Presiding Judge.

Glen McCammon appeals the Industrial Board's negative award on his claim for permanent partial impairment. The issues raised are:

(1) whether the Board's finding of facts is sufficiently specific to allow appellate review;

(2) whether the facts found by the Board are supported by the evidence; and

(3) whether the Board erred in determining that McCammon's settlement with a third party terminated his employer's liability.

The Board adopted the findings of the single hearing member and entered the following award:

"STIPULATION

The parties stipulated that on the 30th day of August, 1976, Plaintiff, GLEN McCAMMON, was employed by the Defendant, YOUNGSTOWN SHEET AND TUBE COMPANY, at an average weekly wage in excess of of (sic) the applicable statutory maximum recoverable pursuant to the Indiana Workmen's Compensation Act. The parties further stipulated that the Plaintiff sustained injuries arising out of and in the course of his employment by the Defendant on August 30, 1976. The parties further stipulated to the Plaintiff having satisfied the statutory notice requirements pursuant to the Indiana Workmen's Compensation Act, and that Defendant furnished all medical, surgical, hospital, nursing care, services necessitated thereby. The parties further stipulated that pursuant to a Form No. 12 Agreement approved September 15, 1976, Defendant paid compensation for temporary total disability at One Hundred Four Dollars ($104.00) weekly from August 31, 1976 to December 5, 1976 and July 11, 1977 to September 26, 1977, for a total of twenty-five (25) weeks; and that the Plaintiff last returned to work on the 27th day of September, 1977, when his disability terminated. The parties stipulated into evidence the medical reports of Dr. Westhaysen, Dr. Rudser, Dr. Fetrow and Dr. Roth, and the deposition of Dr. Roth taken April 3, 1978.

"ISSUES

The issues to be determined by the Single Hearing Member are whether or not Plaintiff, GLEN McCAMMON, suffered any permanent partial impairment as a result of his accidental injury of August 30, 1976; and if so, the amount of permanent partial impairment resulting therefrom.

"EVIDENCE

There was no testimony taken at the hearing, however, the medical evidence submitted shows that Plaintiff had a spondylolisthesis at the 5th lumbar vertebra with increased lordosis of the lumbar durvature, which is of congenital origin and which has formed a pseudoarthrosis on the left that produces radicular pain in the left leg; that the medical opinions are conflicting regarding aggravation of the pre-existing spinal condition as a result of the accidental injury of August 30, 1976; that Dr. Leo Roth stated in his deposition taken April 3, 1978, that in his opinion he would give Plaintiff a disability of close to fifty percent (50%) of the individual as a whole, but that the (sic) felt Plaintiff's back problem was not related to this accident; that prior to this hearing date, Plaintiff settled and dismissed his third party suit agains (sic) Vulcan Materials Company for the sum of Ten Thousand Dollars ($10,000.00).

"FINDINGS

Said Hearing Member, having heard the stipulation of the parties, and having reviewed the entire file and being duly advised in the premises therein, now adopts the stipulation as the Board's findings.

It is further found that there is no evidence as to permanent partial impairment, if any, relating directly to Plaintiff's accidental injury with Defendant on the 30th day of August, 1976, and not caused by his pre-existing spondylolisthesis.

It is further found that by settlement of the third party suit, and pursuant to Section 13 of the Act, Defendant has no further liability to Plaintiff under the Workmen's Compensation Act of Indiana, and the Hearing Member now finds for Defendant and against Plaintiff on Plaintiff's Form No. 9 Application for the adjustment of claim for compensation filed May 15, 1978.

"AWARD

IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Industrial Board of Indiana that Plaintiff take nothing as against Defendant on his Form No. 9 Application filed May 15, 1978, and that Plaintiff pay costs, if any, taxed in this cause."

In determining whether the Board's findings are sufficiently specific to allow intelligent appellate review, this Court is guided by the principles established by the Indiana Supreme Court in the recent decisions of Perez v. United States Steel Corporation (1981) (Ind.) 426 N.E.2d 29 and Talas v. Correct Piping Company, Inc. (1981), Ind., 426 N.E.2d 26. In the present case the Board made the following finding:

"It is further found that there is no evidence as to permanent partial impairment, if any, relating directly to Plaintiff's accidental injury with Defendant on the 30th day of August, 1976, and not caused by his preexisting spondylolisthesis."

An examination of this finding reveals that in reality it is three separate findings: 1) McCammon had a pre-existing spondylolisthesis; 2) there is no evidence that any permanent partial impairment is related to McCammon's accidental injury with Youngstown Sheet and Tube Company; and 3) there is no evidence that any permanent partial impairment was not caused by the pre-existing spondylolisthesis. ¹ These findings, along with the Board's adoption of the parties' stipulations, are sufficiently specific to "reveal the Board's analysis of the evidence and its determination therefrom regarding the various specific issues of fact which bear on the particular claim." Perez, supra, at 33. ²

It must also be noted that the Board made a finding that "there is no evidence" (emphasis added) that any permanent partial impairment was directly related to McCammon's injury of August 30, 1976. In Transport Motor Express, Inc. v. Smith (1972), Ind.App., 289 N.E.2d 737 vacated on other grounds at 262 Ind. 41, 311 N.E.2d 424 (1974), this Court noted:

"Some negative awards are the lawful and proper result of there being no evidence at all in the record as to some one or more relevant questions of basic fact. In such a case it is impossible for the Board to find either that such basic fact does exist or that it does not exist, but the Board can and should find that there is no evidence either affirming or negating such fact. If, however, the Board fails to make the appropriate "no evidence" finding, the reviewing court can affirm such an award without thereby usurping the Board's fact finding authority. To sift the evidence to find that there is no evidence of some fact essential to an affirmative award is not to make a finding of fact." (Original emphasis.)

289 N.E.2d at 745-746 n. 10.

See also, Perez v. United States Steel Corp. (1981), Ind.App., 416 N.E.2d 864, at 868 n. 1 (dissenting opinion, Staton, J.) vacated (1981) Ind., 426 N.E.2d 29. Although neither Transport Motor Express nor Judge Staton's dissent in Perez can be considered as...