R.L. Jeffries Trucking Co., Inc. v. Cain

• Decision Date: 24 October 1989
• Docket Number: No. 93A02-8903-EX-91,93A02-8903-EX-91
• Parties: R.L. JEFFRIES TRUCKING COMPANY, INC. Appellant (Defendant Below), v. Jerry Lee CAIN, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 582

545 N.E.2d 582

R.L. JEFFRIES TRUCKING COMPANY, INC. Appellant (Defendant Below), v. Jerry Lee CAIN, Appellee (Plaintiff Below).

No. 93A02-8903-EX-91.

Court of Appeals of Indiana First District.

Oct. 24, 1989.

George A. Porch, Bamberger, Foreman, Oswald and Hahn, Daniel F. Hewins, Hewins & Hewins, Evansville, for appellant.

Robert C. Rupp, Indianapolis, for appellee.

ROBERTSON, Judge.

Appellant-defendant R.L. Jeffries Trucking Company (Jeffries) appeals from the Industrial Board's granting appellee-plaintiff Jerry Lee Cain a workmen's compensation award for permanent partial impairment and for permanent total disability.

We affirm.

Cain and his wife, Glenda, entered into an agreement with Jeffries to drive a tractor-trailer rig leased to Jeffries by Simoni, a trucking business out of Georgia. Cain and Glenda were to haul and deliver a load of conduit from Evansville to Miami. Both were cleared to drive the truck by Jeffries. On December 26, 1977, during a descent down a mountain at Monteagle, Tennessee, the truck, with Glenda driving, crashed. Glenda was killed. Cain, who had been sleeping in the sleeper, survived with severe injuries, including traumatic amputation of the left leg at the hip. He also suffered a collapsed lung, fractures to the left femur and right ankle, an avulsion of the right testicle, and various other fractures.

Within two months of the accident, Jeffries' insurance carrier and Cain had entered into a Form 12 agreement which was filed and approved by the Industrial Board on February 15, 1978. Jeffries' insurance carrier paid Cain temporary total disability until December 7, 1981. Payment of Cain's medical expenses was discontinued in December, 1982. Cain filed a Form 14 with the Industrial Board on February 7, 1983 alleging his permanent and total disability and permanent partial impairment. In its motion to dismiss Cain's petition, Jeffries raised a statute of limitations defense, claiming Cain's Form 14 was filed more than two years from the date of the accident. This motion was denied by a single hearing member. After a hearing of the full board, the board dismissed Jeffries' appeal from the decision of the single hearing member.

Cain filed a petition for bad faith attorney fees on June 12, 1985. In early 1986, Jeffries' insurance carrier became insolvent. Original counsel for Jeffries withdrew his appearance and the Kentucky Insurance Guaranty Association entered its appearance for Jeffries on March 24, 1986. Thereafter, Jeffries filed special defenses of statute of limitations and violation of a work rule. At a hearing on the merits, Jeffries successfully tried the issue of whether Cain was an employee of Jeffries. After the hearing on the merits before a single hearing member, the member adopted stipulations of fact and made findings. The parties had stipulated that Cain had been involved in the truck accident, and that the carrier had paid Cain certain temporary total disability payments and medical expenses. The hearing member made the following findings:

1. On December 26, 1977, Plaintiff sustained severe personal injuries resulting from a single tractor-trailer accident at Monteagle, Tennessee.

2. On February 15, 1978, the Industrial Board of Indiana approved a Form 12 Agreement Between Employee and Employer As to Compensation in which Plaintiff is identified as "Employee" and Defendant is identified as "Employer."

3. The filing of a Form 12 Agreement constitutes an Award under the Indiana Workmen's Compensation Act and is binding upon the employer and employee.

4. Plaintiff's injuries arose out of and in the course of Plaintiff's employment with Defendant.

5. The compensation insurance carrier for Defendant accepted the claim of Plaintiff as compensable and paid substantial benefits to Plaintiff for temporary total disability and to providers of medical services for their treatment of Plaintiff.

6. Defendant informed the adjuster for the compensation insurance carrier of the claim of Plaintiff for compensation at the outset.

7. As agents of Defendant, the compensation insurance carrier and its adjuster determined Plaintiff's claim to be compensable.

8. The Form 24, Employer's Report to Industrial Board of Injury to Employee, was prepared by Defendant on December 27, 1977 and indicated that Plaintiff had been employed by Defendant on December 7, 1977.

9. The Defendant is bound by its own acts and the acts of its agents and employees and should be estopped from now raising the issue of Plaintiff's status as an employee.

10. Defendant only raised the issue of Plaintiff's status as an employee after Defendant's Workmen's Compensation insurance carrier went into receivership and it became apparent that Defendant could incur some liability for Workmen's Compensation benefits to Plaintiff.

11. A prior Award of a Single Hearing Member denied Defendant's Motion to Dismiss Plaintiff's Form 14 on the issue of the two-year statute of limitations after submission of arguments by Briefs and that issue may not now be relitigated.

12. Plaintiff was sleeping in the sleeper portion of the cab of the tractor and his wife was driving the tractor when it crossed the sunken median of I-24 at Monteagle, Tennessee on the downgrade and left the roadway on the left-hand side.

13. Plaintiff's wife was killed in the accident and the tractor was a total loss.

14. As a result of said accident, Plaintiff's left leg was amputated above the hip joint and he sustained a collapsed left lung, concussion, depressed facial skull fractures, avulsion of the right testicle, a fractured right elbow, an open fracture dislocation of the right ankle with the lateral ligaments and anterior ligaments of the ankle joint having been torn out, a broken bone in the right foot and multiple minor contusions and lacerations.

15. Plaintiff underwent a fusion of his right ankle.

16. Plaintiff's right ankle cannot support his weight.

17. Plaintiff also underwent extensive exploratory abdominal surgery and facial constructive surgery.

18. Plaintiff's lymph nodes at the site of the amputation have also been surgically removed.

19. Plaintiff has developed neuromas on his amputation site scar tissue which have been surgically removed.

20. Plaintiff has severe recurring muscle spasms which are initiated in his gluteus maximus and medius muscles on his left side, which muscles would normally be attached to his femur but due to the amputation are unattached.

21. The muscle spasms, if uncontrolled, spread into Plaintiff's back, neck and head.

22. During spasm, Plaintiff has had knots, up to nine at one time, pop out of the muscle tissue.

23. Plaintiff attempts to control the onset of muscle spasms through oral medication.

24. When Plaintiff's spasms cannot be controlled by oral medication, he requires intramuscular injections or intravenous treatment.

25. Plaintiff has been hospitalized on numerous occasions for treatment of the muscle spasms and pain associated therewith.

26. The longest period of time Plaintiff has managed without a muscle spasm is two weeks.

27. When Plaintiff's muscles are in spasm, he suffers from impaired circulation to the affected area.

28. Plaintiff's wife massages the affected muscles daily in an attempt to prevent muscle spasms from developing.

29. Plaintiff underwent a lumbar facet block to relieve his muscle spasms and improve circulation to his hip which was temporarily successful.

30. Plaintiff has had a total of fifteen or sixteen surgeries, all but two of which required general anesthetic.

31. Plaintiff was referred to all subsequent treating physicians by either Dr. Sowa or Dr. Duvall, the services of both of whom were provided to Plaintiff by Defendant.

32. Plaintiff attempted to return to work for approximately two months in early 1979.

33. Plaintiff was forced to discontinue his employment due to recurrent muscle spasms and an acute condition of his right ankle.

34. Neither Dr. Sowa nor Dr. Duvall, Plaintiff's treating physicians, has ever authorized Plaintiff to return to work.

35. Defendant discontinued Plaintiff's temporary total disability benefits in December, 1981.

36. Defendant discontinued payment of medical care and treatment for Plaintiff in December, 1982.

37. Plaintiff has a prosthetic device which fits around his waist and is hinged at the hip and knee and has a collapsible heel.

38. Plaintiff can use his prosthesis without additional support only on a flat smooth surface.

39. Plaintiff's right ankle and elbow react to Plaintiff's use of crutches with the ankle swelling and sometimes losing the use of the right arm.

40. Plaintiff regularly develops boils on his amputation site and has had up to twenty-three at one time.

41. Plaintiff first developed boils on the amputation site shortly after his first release from the hospital.

42. Plaintiff has only gone from seven to eight days with no boils.

43. The boils swell and are extremely painful and require lancing.

44. Plaintiff's Navy radar skills required the use of both feet and hands.

45. Plaintiff's Navy training controlled air attacks and has no application to civilian air traffic control.

46. Plaintiff's right arm is very weak and his side to side strength is extremely limited.

47. Plaintiff is right-handed and he has the full use of his left arm.

48. Plaintiff can read and write although the significant quantities of medication he ingests do affect his faculties.

49. Plaintiff has an operator's license and can drive his father's tractor for brief periods of time.

50. Plaintiff lives on a farm adjacent to his father's farm but Plaintiff does not perform any farming tasks.

51. Plaintiff has sustained a permanent partial impairment of seventy-six per cent (76%) of the man as a whole as follows: hip, 40% of the body as a whole; right ankle, 20% of the body as a whole; right elbow, 4% of the body as a whole; cumulative effect, 2% of the body as a whole; right...