McMillan v. American Hoist & Derrick Co.

• Decision Date: 22 December 1975
• Docket Number: No. 2--574A120,2--574A120
• Citation: 338 N.E.2d 677,167 Ind.App. 328
• Parties: David H. McMILLAN, Appellant (Plaintiff-Below), v. AMERICAN HOIST & DERRICK COMPANY, Appellee (Defendant-Below).
• Court: Indiana Appellate Court

Page 677

338 N.E.2d 677

167 Ind.App. 328

David H. McMILLAN, Appellant (Plaintiff-Below), v. AMERICAN HOIST & DERRICK COMPANY, Appellee (Defendant-Below).

No. 2--574A120.

Court of Appeals of Indiana, Second District.

Dec. 22, 1975.

Lynnville G. Miles and Gale I. McGrew, Indianapolis, for appellant.

James E. Dowling, Rocap, Rocap, Reese & Young, Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Review is sought by Claimant-Appellant David H. McMillan (McMillan) of a negative award entered by the Full Industrial Board of Indiana (the Board) denying increased compensation due to a change in condition from an award originally granted McMillan in 1968 as an employee of American Hoist & Derrick Company (the Employer), claiming the Board's decision was contrary to law because of uncontroverted proof of his compliance with IC 1971, 22--3--3--27 (Burns Code Ed.). ¹

Because we are directing the Board to make more specific findings, we retain jurisdiction of this appeal pending the Board's action consistent with this opinion.

FACTS

The facts and evidence before the Board most favorable to the Board's decision are:

As a result of an accident on October 21, 1965, arising out of and in the course of his employment, McMillan was struck on the head by an elevator bucket causing him personal injuries.

On September 3, 1968, the Board found McMillan's condition was a result of the accidential injury and he had reached a permanent and quiescent state resulting in a forty percent permanent partial impairment to the body as a whole. He was awarded forty percent permanent partial impairment of the body as a whole.

Then, on August 1, 1970, McMillan filed Industrial Board Form 14, being an Application for the Review of Award on Account of a Change in Conditions in which he alleged that his disability had incresed since the date of the original award.

On February 19, 1973, McMillan filed an affidavit stating that he had been examined by three doctors: Dr. David Sluss, Dr. Iver Small and Dr. Gabriel Schuchman and letters ² from each of them stating their conclusions as to his change of condition, or lack thereof, were attached to his affidavit.

Pursuant to an order of the Board the deposition of Dr. Iver F. Small was taken, and filed on April 9, 1973 with the Board. Inter alia, Dr. Small diagnosed McMillan's condition as having 'gone on beyond a neurotic reaction and he has now subsumed itself under a psychotic reaction.' He concluded that McMillan had become totally and permanently disabled and 'in medical terms he was sicker in 1973 than he was in 1967.'

Dr. Small's deposition also contained a statement that, 'The second thing is that a man whose condition drags on without change for a period of four and a half In its Findings of Fact dated May 2, 1974, the Board stated that 'in view of all the pleadings, arguments and discussions had with various representatives of the defendant and the plaintiff by the Board, it is clear that all parties construed the Form 14 Application of August, 1970, in the manner now sought by the plaintiff . . .' and it further found that 'the only evidence in the record as to whether or not plaintiff has experienced a change in condition is the deposition of Dr. Iver F. Small . . ..'

years is certainly worse after four and a half years and the outlook for rehabilitation is practically zero.'

Part of his deposition was then set out in the Findings, including the Doctor's statement about a man whose condition drags on 'without change for a period of four and a half years . . ..'

The Board concluded that, 'Dr. Small did not describe a change of conditions and for that reason the award of September 8, 1970 should stand.'

ISSUE

The only issue for disposition is:

Is the Board's decision denying McMillan increased compensation for a change in condition contrary to law?

McMillan contends that the only evidence properly before the Board for consideration subsequent to the original award establishes that McMillan is now one hundred percent disabled as shown by undisputed proof . . . the change in condition being from an anxiety neurosis to a psychosis.

The Employer attacks the Form 14 filed by McMillan on the ground that it only stated that disability had increased and not that there was a permanent partial impairment increase since the day of the award (no cross error filed). Also the Employer observes there was no evidence presented to the Board of a change in condition by way of a comparative opinion.

DECISION

CONCLUSION--The Board's findings are not sufficiently specific for us to intelligently review its decision.

As McMillan concedes in his brief, he is appealing from a negative award and we may only reverse if reasonable men would have been bound from undisputed evidence to reach a conclusion contrary to the Board's decision.

See, Page v. Board of Commissioners of County of Clay (1973), Ind.App., 292 N.E.2d 254, 257; Smith v. Graver Tank & Mfg. Co. (1973), Ind.App., 302 N.E.2d 852; Robinson v. Twigg Industries (1972), Ind.App., 289 N.E.2d 733, 735; Lincoln v. Whirlpool Corp. (1972), 151 Ind.App. 190, 279 N.E.2d 596, 599; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399.

However, the Board's findings are not specific enough for us to intelligently review its decision.

Also see, Carlton v. Board of Zoning Appeals (1969), 252 Ind. 56, 245 N.E.2d 337; Transport Motor Express, Inc. v. Smith (1972), Ind.App., 279 N.E.2d 262; Robinson v. Twigg Industries, Inc. (1972), Ind.App., 281 N.E.2d 135; Johnson v. Thomas & Skinner, Inc. (1972), Ind.App., 282 N.E.2d 346; Page v. Board of Commissioners of County of Clay (...