Page v. Board of Com'rs of Clay County

• Decision Date: 13 February 1973
• Docket Number: No. 172A8,172A8
• Citation: 292 N.E.2d 254,155 Ind.App. 215
• Parties: Sherrel PAGE, Appellant (Plaintiff below), v. BOARD OF COMMISSIONERS OF the COUNTY OF CLAY, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 254

292 N.E.2d 254

155 Ind.App. 215

Sherrel PAGE, Appellant (Plaintiff below), v. BOARD OF COMMISSIONERS OF the COUNTY OF CLAY, Appellee (Defendant below).

No. 172A8.

Court of Appeals of Indiana, Section District.

Feb. 13, 1973.

B. Michael McCormick, Daniel L. Weber, Terre Haute, for appellant.

Joseph A. Wicker, Indianapolis, Robert J. Wicker, Greenwood, for appellee; Williams, Van Valer & Wicker, Greenwood, of counsel.

BUCHANAN, Presiding Judge.

CASE SUMMARY--Judicial review is sought from an award of the Industrial Board of Indiana (the Board) against the defendant-appellee the Board of Commissioners of the County of Clay (the County), and in favor of plaintiff-appellant, Sherrel Page (Page) which reduced the amount of a previous award by the Single Hearing Member.

We affirm.

CASE HISTORY--Page previously sought to have this court review the action of the Board reducing the award of the Single Hearing Member. This we refused to do because the Board's findings of fact were inadequate in that they did not specifically state whether Page's traumatic neurosis was connected with or due to the accident in which he sustained bodily injuries.

Accordingly, on June 14, 1972, this court in Sherrel Page v. The Board of Commissioners of County of Clay, (Ind.App.1972) 283 N.E.2d 571, remanded this cause for further specific findings of fact and in compliance therewith the Board amended its findings of fact, which are set forth below.

So we proceed to review the Board's award on the merits.

FACTS--The facts and evidence most favorable to the County are:

On January 4, 1966, Page was employed by the County as a highway construction engineer. En route to work on the morning of January 4, 1966, Page's truck stalled on the highway and he was struck and injured by an approaching automobile as he abandoned the stalled truck.

Page suffered multiple injuries--including injury to his back, left foot, right leg Page remained in the hospital for about nine days and did not return to work for the County for at least five weeks. During his sojourn there and for some time after his release, various medications and tranquilizers were precribed by Dr. Tomak in an attempt to relieve Page's persisting nervous disorder. The cost of these prescriptions totaled approximately $1,100 for which Page did not receive reimbursement.

right hip, and a cerebral concussion. At the hospital he was treated by Dr. M. E. Tomak (Dr. Tomak) who observed that Page was in a state of shock and exhibited symptoms of acute traumatic neurosis.

Resuming his job with the County, Page testified he experienced cold sweats and a compelling urge to run away 'after a few seconds' exposure to traffic' and heavy equipment, so that he was unable to perform his duties as a highway construction engineer.

After unsuccessful settlement negotiations, a Single Hearing Member heard the case March 22, 1971, at which time Page contended his continuing nervous disorder (neurosis) prevented him from returning to his former employment and that this condition was the result of the January 4, 1966 accident.

Dr. Tomak testified at this hearing that his examination of Page after the accident revealed that in addition to physical injuries, Page experienced extreme nervous and hyperactive sensations as a result of neurogenic shock and a cerebral concussion, which he categorized as acute traumatic neurosis and for which he prescribed certain medications during the 80 to 100 times he attended Page. It was his opinion that his patient was, as a result of the accident, permanently impaired to the extent of 30% of the man as a whole, attributing 15% of the disability to traumatic neurosis arising out of the January 4, 1966 accident.

Another expert witness for Page was Dr. Gene Moore (Dr. Moore), a psychiatrist who examined Page three years after the accident. He testified as to the various symptoms of Page's neurosis and in effect concluded that his fears and irrationality came about because 'Mr. Page had the hell scared out of him' by the accident and would probably continue to be afraid of traffic for some time to come. Dr. Moore also testified that Page would have difficulty performing any job requiring work close to traffic.

The only evidence produced by the County relevant to the neurosis question was an unsworn and unverified letter by a Dr. John R. Russell (Dr. Russell), to which no objection was made by Page. Five years after the accident Dr. Russell examined Page and expressed doubt that he could return to his employment as a highway construction engineer due to the neurosis, but flatly stated that Page had no permanent impairment attributable to the accident of January 4, 1966. (Page 'has obvious psychological disorder, but this is not caused by the January 4, 1966 accident.')

After the evidence was presented, the Single Hearing Member entered an award in favor of Page for 20% permanent partial impairment, $45.00 per week for 100 weeks and compensation for all medical expenses incurred by Page.

On April 12, 1971, the County filed a Form 16 application seeking to have the award reviewed by the Board. The Board granted the County's application and reviewed the evidence, during which there was again no objection by Page to Dr. Russell's letter. On October 27, 1971, it reduced Page's award to 10% permanent partial impairment, granted him $45.00 per week for 50 weeks and refused to make any award for medical expenses incurred for the treatment of traumatic neurosis. The Board, however, failed to make a specific finding of fact as to whether Page's neurosis was caused by the accident[155 Ind.App. 219] --a defect now remedied by the Board which has 'That plaintiff's (Page) alleged traumatic neurosis was not due to his accident of January 4, 1966.

amended its findings of fact to include the following:

'That the medical expenses of plaintiff which were not paid by the defendant (the County) were attributable to plaintiff's treatment for the alleged traumatic neurosis.

'That plaintiff is not entitled to a recovery against the defendant for the additional medical expenses and additional permanent partial impairment claimed by plaintiff as a result of his alleged traumatic neurosis.'

Throughout these proceedings Page was represented by counsel.

ISSUES

ISSUE ONE. Is the Board's finding that Page's traumatic neurosis was not due to the accident contrary to law because it was based on unsubstantial evidence which was contrary to other medical testimony?

ISSUE TWO. Is the award of the Board contrary to law because it failed to award Page compensation for medical expenses incurred in the treatment of his traumatic neurosis?

As to ISSUE ONE, Page argues the only evidence which did not show his traumatic neurosis to be the result of the accident was an 'unsubstantiated, unexplained . . . conclusion' in Dr. Russell's letter. Other medical evidence presented by Page clearly established his traumatic neurosis to be the result of the accident.

The County replies that Page is merely asking this court to reweigh the evidence and that there was sufficient evidence before the Board to warrant its reduction of Page's original award.

As to ISSUE TWO, Page argues that since the Board found at least 10% permanent partial impairment, its award was contrary to law because it refused to make a provision for medical expenses which the evidence showed to have been a result of the January 4, 1966 accident.

The County, however, asserts that these medical expenses relate to treatment for traumatic neurosis and not physical injuries. Since the Board found Page's traumatic neurosis was not a result of the accident then it properly denied compensation for any medical expenses incurred by Page for treatment of the traumatic neurosis.

DECISION

ISSUE ONE.

CONCLUSION--It is our opinion that the award by the Board is not contrary to law because the evidence as to whether Page's traumatic neurosis resulted from the accident of January 4, 1966 was conflicting, and it had the right to weigh the evidence.

Because this court has repeatedly stressed the need for...