Perez v. U.S. Steel Corp., No. 2-880A258

• Docket Nº: No. 2-880A258
• Citation: 416 N.E.2d 864
• Case Date: February 23, 1981
• Court: Court of Appeals of Indiana

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416 N.E.2d 864 Benedicto PEREZ, Plaintiff-Appellant,
v.
UNITED STATES STEEL CORPORATION, Defendant-Appellee. No. 2-880A258. Court of Appeals of Indiana, Third District. Feb. 23, 1981.

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J. B. Smith, Andrew J. Fetsch, Beckman, Kelly & Smith, Hammond, for plaintiff-appellant.

Douglas F. Stevenson, Robert K. Bush, Rooks, Pitts, Fullager & Poust, Chicago, Ill., for defendant-appellee.

GARRARD, Judge.

Benedicto Perez sustained a work related injury while employed by United States Steel Corporation. He processed a claim for workman's compensation and was found by the board to have suffered a compensable 20% permanent partial impairment. This is the second appeal on his claim.

In the first appeal we noted that Perez had claimed inter alia that he was permanently totally disabled. Our opinion noted the distinction between disability and impairment and that a claim for permanent total disability was cognizable under section 10 of the act. We concluded that because of the distinction between impairment and disability the board's finding of a partial impairment was not sufficient to preclude a finding of total permanent disability. Therefore, since the board made no express finding concerning disability in its original award we remanded for further proceedings. To insure that the question was fairly litigated under the distinctions drawn in our opinion, we directed the board to permit additional evidence on the question of permanent total disability. Perez v. United States Steel Corp. (1977), 172 Ind.App. 242, 359 N.E.2d 925.

On remand the board permitted the parties to secure and present additional evidence on the question of disability. It then properly considered this evidence together with that adduced at the original hearing and then concluded that Perez had not established total permanent disability. Accordingly, it reaffirmed the prior award for partial impairment.

In this appeal Perez challenges the sufficiency of the findings and, additionally, urges that the evidence requires the contrary result. We disagree.

The board is required to enter findings of fact upon which its determination is made so that we, as a reviewing court, may intelligently review the award and determine the issues of law that apply to the case. Transport Motor Express, Inc. v. Smith (1974), 262 Ind. 41, 311 N.E.2d 424.

In other applications of appellate review of findings we have noted their purpose is to illuminate the reasons for decision and have concluded that they should be found adequate where they are sufficient to disclose a valid factual basis under the issues for the legal result reached. See, e. g., In re Marriage of Miles (1977), Ind.App., 362 N.E.2d 171. Within this approach to review we, however, remain convinced that a finding which states merely that "witness A testified that such-and-such occurred" is inadequate as a factual finding that the event indeed did occur. Such a conclusion that the fact finder believed the witness is too conjectural. See Whispering Pines Home for Senior Citizens v. Nicalek (1975), Ind.App., 333 N.E.2d 324.

In the case before us it is quite true, as Perez points out, that the portion of the board's decision labelled "Findings" makes the bare recitation:

"That Plaintiff is not permanently totally disabled within the definition set forth in the opinion of the Court of Appeals."

Were there nothing more we would be forced to agree with Perez' urging since the statement fails to reveal any factual basis for the conclusion it states. It fails to say why.

However, immediately preceding this statement in that portion of the decision denominated "Summary of Evidence" appears a recitation of what the various medical

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witnesses testified to. The recital concludes with the following two sentences:

"In the Board's experience, the medical findings in the evidence in this case, from both Plaintiff's and Defendant's physicians, show that Plaintiff is capable of pursuing many normal kinds of occupations. He has permanent partial impairment, but not a permanent total disability."

This, in reality, is the board's finding of fact and it clearly discloses the basis for the board's ultimate conclusion. To the extent that it might be argued that the placement of this statement in the decision should obscure it from our view on appeal, we find a sufficient response in Indiana Rules of Procedure, Appellate Rule 15(E) which directs that no judgment shall be reversed for a defect in form where it appears that the merits of the cause have been fairly tried and determined.

Since the record of the evidence does support a determination by the board that Perez was not permanently totally disabled because he was capable of pursuing many normal kinds of occupations, the findings are not contrary to law and the decision is to be sustained.

Affirmed.

HOFFMAN, P. J., concurs.

STATON, J., dissents and files separate opinion.

STATON, Judge, dissenting.

I dissent.

I am unable to agree with the majority's conclusion that the Industrial Board's purported findings of fact are sufficient to enable this Court to conduct an intelligent review of the Board's denial of Benedicto Perez's claim for total permanent disability benefits. Under the guise of Appellate Rule 15(E), the majority concludes that the Board's "Summary of Evidence" (which the majority determined ipse dixit to be the Board's findings of fact) presents merely a "defect in form." The purported "defect in form" is in fact a substantive defect which effectively deprives Perez of his right to adequate review of his claim. The majority's condonation of the Board's perfunctory approach to its fact-finding function will do nothing more than perpetuate the Board's wholesale disregard of the numerous appellate court decisions that have attempted to guide the Board in formulating findings of fact which are sufficient for judicial review.

The Workers' Compensation Act requires an appealable award of the Board to be filed "with the findings of the facts on which (the award) is based ...." IC 1976, 22-3-4-7 (Burns Code Ed.). The full Board's award is "conclusive and binding as to all questions of (the) fact ...." IC 1976, 22-3-4-8 (Burns Code Ed.). In light of the conclusive nature of the Board's fact-finding function, Indiana courts have required that the Board's findings of fact contain all facts relevant to contested issues and that the findings be specific enough to enable the reviewing court to intelligently review the Board's award. Indiana Bell Telephone Co., Inc. v. Owens (1980), Ind.App., 399 N.E.2d 443, 445; Penn-Dixie Steel Corp. v. Savage (1979), Ind.App., 390 N.E.2d 203, 205; Whispering Pines Home for Senior Citizens v. Nicalek (1975), Ind.App., 333 N.E.2d 324, 326; TRW, Inc., Ross Gear Division v. West (1973), 155 Ind.App. 495, 497, 293 N.E.2d 517, 518.

The mere recitation of testimony presented before the Board is insufficient to discharge the Board's statutory duty to make specific findings of fact on contested issues. Whispering Pines, supra, 333 N.E.2d at 326. The Board in Whispering Pines (and in the present case) submitted purported findings of fact that were direct quotations from the reports and testimony of physicians. Determining that such recitation of testimony presents nothing for judicial review, the court stated:

"(W)hat we have before us in paragraph three is nothing more than a summary of the evidence, without any statement at all by the Board that anything testified to by any of the four witnesses is a fact. Nor can we reasonably assume that the Board is trying to tell us that it found the

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facts to be what all the witnesses testified they were. There are too many conflicts for that to be so.

"All that we can reasonably understand is that the Board is telling us (by implication) that it does not know how to make a specific finding of facts and therefore it tells us what evidence it considered and leaves it to us to pick out therefrom the specific facts which support its award and to reject those which do not."

333 N.E.2d at 326.

The...