Rockwell Intern. v. Byrd

• Decision Date: 27 October 1986
• Docket Number: No. 93A02-8601-EX34,93A02-8601-EX34
• Citation: 498 N.E.2d 1033
• Parties: ROCKWELL INTERNATIONAL, Appellant (Defendant Below), v. James H. BYRD, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1033

498 N.E.2d 1033

ROCKWELL INTERNATIONAL, Appellant (Defendant Below), v. James H. BYRD, Appellee (Plaintiff Below).

No. 93A02-8601-EX34.

Court of Appeals of Indiana Fourth District.

Oct. 27, 1986.

Wesley G. Kipp, LaPorte, for appellant.

David L. Hollenbeck, Randall J. Zromkoski, Blachly Tabor Bozik & Hartman, Valparaiso, for appellee.

MILLER, Judge.

Rockwell International, employer, appeals a decision by the Industrial Board of Indiana finding James H. Byrd, employee, suffered an accidental slip and fall injury arising out of and in the course of his employment, sustaining a back injury which permanently and totally disabled him.

Rockwell challenges the Industrial Board's findings that Byrd suffered a work-related injury; that Byrd had no pre-existing back impairment; and, that Byrd is permanently and totally disabled. Rockwell also claims it is entitled to credit for payments of $43,013.14 made to Byrd, before he filed for work-related personal injury disability, by Metropolitan Insurance Company under a non-work related sickness and accident insurance policy.

We affirm.

FACTS

On June 3, 1977, Betty Rae Byrd, James H. Byrd's wife, completed and submitted a United Auto Workers Claim Form and signed her husband's name, requesting sickness and accident benefits because Byrd had injured his back and leg while jacking up the family car to change tires on May 31, 1977. Byrd testified he was unaware of his wife's execution of the claim form and upon learning of it, he became upset with her. Byrd claims he did not physically take part in either jacking up or changing the tires of the family automobile but rather supervised his son, Wayne Byrd. Byrd did receive and accept total sickness and accident benefits for a non-work related accident of $43,013.14; $33,406.07 in cash and $9,607.07 in medical benefits.

On April 28, 1977 Byrd filed a Form 9 application with the Industrial Board of Indiana, alleging personal injury arising out of and in the course of his employment with Rockwell International. Byrd claimed that on May 26, 1977 he injured his back at work when he slipped and fell while lifting a 50 pound metal helmet from a skid to a table. Raymond Nowak, a co-worker, noticed Byrd was not working to full capacity and questioned Byrd, who responded he had fallen and was experiencing pain. Byrd left work before the end of his shift and went home.

Byrd was initially hospitalized at Starke Memorial Hospital on May 31, 1977. After his release, Byrd sought initial medical care from Dr. Ernest Seller who performed a laminectomy and spinal fusion on August 18, 1977.

After two years of treatment, Byrd had experienced no relief as a result of the surgery. On August 28, 1979, Byrd saw a second physician, Dr. Marvin Gold, an orthopedic surgeon, who examined Byrd and found a 20% permanent partial impairment of the body as a whole as a result of the injuries sustained in the May 26, 1977 industrial accident. Byrd continued treatment with Dr. Gold in 1980 and 1981. Dr. Gold performed a decompressive laminectomy in April 1981. Despite this surgery and other treatment, Dr. Gold believed there had been no appreciable change in Byrd's condition during the period of treatment; Byrd was incapable of engaging in any reasonable employment; and his condition was permanently disabling.

In addition to receiving care from his own two physicians, Byrd was examined by two physicians selected by Rockwell. On October 11, 1979, Dr. Leo Roth examined Byrd and noted he was in pain, walking guardedly, his lumbar spine motion was restricted, and straight leg raising signs were strongly positive bilaterally. Dr. Roth concluded Byrd sustained a 30% permanent partial impairment of the body as a whole as a result of the May 26, 1977 industrial accident. On June 16, 1982 Dr. William A. Starke examined Byrd. Byrd complained of left leg numbness, tingling in his toes, and constant low back pain. Dr. Starke found Byrd had no lumbar flexion, and was tender over the entire lumbar area and left sciatic notch. Dr. Starke concluded Byrd was experiencing a 50% permanent partial impairment of the body as a whole. Dr. Starke was unable to attribute the impairment to the May 26, 1977 industrial accident and opined Byrd's back impairment could have been preexisting and may have remained totally nonsymptomatic until triggered by the trauma of slipping and falling.

In addition, Byrd was evaluated by Dr. David S. Frank, a psychologist who specializes in disability determinations. Dr. Frank found Byrd had an IQ of 80, which places him in the lowest 10-15% of the general population, and Byrd's academic achievement ranged from a high in reading at 5th grade level to a low in math at 3rd grade level. Dr. Frank concluded Byrd was totally and permanently disabled pursuant to the Indiana Workers Compensation Act, and Byrd was not a candidate for vocational rehabilitation.

Since May 1977, Byrd continues to experience pain in his back and legs, with spasms and numbness, for which he takes Tylenol # 3 with codeine. Due to pain in his legs, Byrd sleeps only an average of 2 to 3 hours per night. Byrd also exhibits a propensity to fall and inability to sit for extended periods of time, and must occasionally lie flat to relieve his back pain.

Byrd filed his claim under the Indiana Worker's Compensation Act on April 28, 1979. On June 19, 1981, Hearing Judge John A. Rader, entered an order that Byrd suffered accidental injury arising out of and in the course of his employment with Rockwell when he slipped and fell when lifting a metal helmet on May 26, 1977. Judge Rader heard the medical testimony on February 26, 1985 and issued the following findings of fact and conclusions of law on April 18, 1985:

"FINDINGS OF FACT AND CONCLUSIONS OF LAW

Said Hearing Judge, having heard all the evidence in said cause, 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.

1. It is further found that the plaintiff has suffered a permanent partial impairment causally connected to the accidental injury of 50% of the body as a whole.

2. It is further found that plaintiff's prior employment consisted of semiskilled to unskilled labor.

3. It is further found that the plaintiff's I.Q. is approximately 80, putting him in the bottom ten to fifteen percent of the population.

4. It is further found that plaintiff's basic achievement level ranges in the third to fifth grade level.

5. It is further found that plaintiff experiences pain in his back and legs, difficulty riding in a car, and needs to lie down at regular intervals in order to relieve his pain.

6. It is further found that plaintiff's sleep patterns are disturbed.

7. It is further found that baseed on the foregoing, plaintiff is not able to carry on reasonable types of employment and is not a candidate for vocational rehabilitation and therefore is found to be permanently totally disabled within the meaning of the Workmen's Compensation Act.

8. It is further found that defendant is responsible for paying the statutory medical expense incurred as a result of this accidental injury. The parties are directed to attempt to agree on what constitutes statutory medical expense, and in the event they cannot agree, that issue alone will be set for further hearing by the Board."

On January 3, 1986 the full Industrial Board adopted and affirmed Hearing Judge Rader's award.

Issues

Rockwell presents the following issues, which we have consolidated and restated, for review on appeal:

I. Whether there is sufficient evidence to support the Industrial Board's finding that:

A. Byrd's injury arose out of and in the course of his employment with Rockwell on May 26, 1977?

B. Byrd had no preexisting back impairment?

C. Byrd was totally and permanently disabled?

II. Whether the Industrial Board erred in denying Rockwell credit for payments made to Byrd by Metropolitan Life Insurance Company under Rockwell's non-work related sickness and accident insurance policy.

DISCUSSION and DECISION

The Industrial Board's responsibility as trier of fact in disability cases is to make findings which reveal its analysis of the evidence and are specific enough to permit intelligent review of the Board's decision. In reviewing the Industrial Board's decision, we will not reweigh the evidence nor assess the credibility of the witnesses. We will examine the findings of fact to see if they are sufficient to support the decision. We will review the evidence in the record only to see if there was competent evidence of probative value, whatever its weight, to support the Board's findings. We will consider only the evidence most favorable to the award, including any and all reasonable inferences deducible from the proven facts. See generally, Holloway v. Madison-Grant United School Corp. (1983), Ind.App., 448 N.E.2d 27, 31; Tonn and Blank, Inc. v. Curtis (1967), 141 Ind.App. 115, 226 N.E.2d 551, 553; Colgate-Palmolive-Peet Co. v. Setliff, et al. (1934), 98 Ind.App. 577, 189 N.E. 396.

We also note that it is the responsibility of the Industrial Board to weigh the conflicting opinions of physicians. General Accident, Fire, and Life Insurance Cor., Ltd. v. Waldon (1950), 121 Ind.App. 1, 94 N.E.2d 487.

I. Sufficiency of the Evidence

A. Work-Related Injury

First, Rockwell claims the evidence shows Byrd received and accepted $43,013.14 in sickness and accident benefits and extended disability benefits for five (5) years from 1977 through 1982 from Metropolitan Life Insurance Company under Rockwell's insurance policy, and that Byrd therefore admits he received a non-work related injury. Rockwell argues the evidence shows Byrd injured his back while jacking up the family car on May 31, 1977.

While the evidence is conflicting, the Board determination that Byrd was injured at work on May 26, 1977, and that Byrd's injury arose out of and in the course of...