Rork v. Szabo Foods

• Decision Date: 30 September 1982
• Docket Number: No. 682S219,682S219
• Citation: 439 N.E.2d 1338
• Parties: Mary RORK, Appellant (Plaintiff below), v. SZABO FOODS, Appellee (Defendant below).
• Court: Indiana Supreme Court

Page 1338

439 N.E.2d 1338

Mary RORK, Appellant (Plaintiff below), v. SZABO FOODS, Appellee (Defendant below).

No. 682S219.

Supreme Court of Indiana.

Sept. 30, 1982.

Richard L. Russell, Rodney V. Shrock, Bayliff Harrigan Cord Maugans & Russell, P. C., Kokomo, for appellant.

David A. Steckbeck, Richard A. Mann, Steckbeck, Moore & Cohen, Indianapolis, for appellee.

ON PETITION TO TRANSFER

HUNTER, Justice.

This cause was brought before this Court on the petition to transfer of Mary Rork, wherein she sought review of the Court of Appeals' opinion found at Rork v. Szabo Foods, (1981) Ind.App., 426 N.E.2d 1379. We have previously granted transfer, vacated the opinion of the Court of Appeals, and remanded the cause to the Full Industrial Board of Indiana with instructions for the Board to enter the specific findings of issuable facts upon which its decision was based. Rork v. Szabo Foods, (1982) Ind., 436 N.E.2d 64.

Rork was injured in the course of her employment with Szabo Foods when she fell while leaving work on April 22, 1977. Rork and Szabo Foods disagreed on the questions of liability and compensation for her injuries, prompting Rork to file a claim for workmen's compensation.

In her claim, Rork alleged she had sustained a "severe ankle sprain, injury to back vertebrae, and related complications diagnoses [sic] as throiditis and softening of bone in the back vertebrae." She alleged that on several occasions, she had attempted to return to work, but that continuing pain rendered her unable to fulfill her employment duties. She sought compensation for total temporary disability, permanent total disability, and permanent partial impairment.

A hearing was conducted before a single member of the Industrial Board. Ind. Code Sec. 22-3-4-6 (Burns 1974). There, the parties stipulated to the following matters, as summarized by the hearing officer:

"The parties stipulated and agreed that on or about April 22, 1977, plaintiff was in the employ of the defendant at an average weekly wage of $154.40, and that on said date plaintiff suffered an accidental injury arising out of and in the course of her employment with the defendant. It was further stipulated that thereafter the defendant did pay to the plaintiff 36.568 weeks of compensation at the rate of $102.92 per week for her intermittent temporary total disability up to and including March 13, 1978. The parties further agreed that the depositions of Doctors Smith, Rettig, Halfast and two depositions of Dr. Higgins are to be considered as the medical evidence in this cause."

Based on the evidence presented and the arguments of the parties, the hearing officer concluded Rork had suffered "permanent partial impairment equal to 10% of the body as a whole" and awarded her fifty weeks of compensation at the rate of $60 per week; the hearing officer also found that Szabo Foods was entitled to set-off in the amount of $102.92 per week for a period of 10.568 weeks "for temporary total disability payments paid beyond the statutory 26 weeks."

Rork then appealed the award to the Full Industrial Board. Following a hearing, the Board affirmed the award as entered by the hearing officer; to support its decision, it adopted verbatim the findings of basic fact which the hearing officer had entered.

As explained, we held those findings were inadequate to reveal the Board's determination of the various sub-issues and factual disputes which, in their sum, were dispositive of Rork's claim. Rork v. Szabo Foods, supra; see generally, Perez v. United States Steel Corp., (1981) Ind., 426 N.E.2d 29. We remanded the cause to the Board with instructions to correct the inadequacy. In response, the Board has submitted "Additional Findings of Fact," which read as follows:

"Comes now the Full Industrial Board, and pursuant to order of Court certifies the following additional Findings of Fact:

"It is further found that the plaintiff since 1972 missed the following periods of employment, and during which time she was hospitalized, to-wit: 12-4-72 to 12-10-72; 7-5-73 to 7-17-73; 5-14-74 to 5-31-74; 1-26-75 to 1-30-75, and that she was thereafter paid 28 weeks of disability for the period 7-22-75 to 2-1-76 for spinal problems.

"It is further found that upon examination by plaintiff's family physician, Jack W. Higgins, M.D., on 5-12-77, 5-27-77, 6-10-77 and 7-29-77, that it was upon the last mentioned date, to-wit: 7-29-77, that plaintiff first made complaints of back pain.

"It is further found that the plaintiff subsequently advised physicians of back pain existing from the date of the accident but that this fact is found not to be true based on the lack of objective medical history made contemporaneous with the event in question.

"It is further found that on 9-30-77 plaintiff had some evidence of a soft tissue injury of the right ankle and some diffuse tenderness in the back which was nonspecific, and no significant limitation of motion of any of her joints.

"It is further found that on said date there was a significant kyphotic deformity of the thoracic spine which predated the accidental injury herein.

"It is further found that the degenerative changes of the thoracic spine with osteoporosis which existed on September 30, 1977 were not causally connected to the accidental injury.

"It is further found that on 10-13-77 plaintiff had indication of hypertrophic arthritis of the thoracic and lumbar spines, which the Board finds preexisted the accidental injury.

"It is further found that x-rays taken in 1975 also indicated a rotary scoliosis.

"It is further found that comparison x-rays made in 1975, 1978 and 1980 show that the degree of osteoarthritic change is minimal and no more than the normal course of the disease process progression.

"It is further found that in August of 1978 that her range of motion of flection and extension were reasonably within normal range and that lateral and rotary bending mobility was normal.

"It is further found that at such time there was no evidence of spasm, list or tilt of the spine of an abnormal nature, and that her ankle mobility was essentially equal in both extremities.

"It is further found that based on the orthopedic examination, which examination realized that plaintiff was suffering pain but which pain was not capable of producing objective limitation of motion, that the plaintiff was not unable to perform a reasonable job.

"It is further found that if there is significant amount of pain there will usually be tightness in the muscle and a normal range of motion in either passive or active movement.

"It is further found that upon examination in January of '79, plaintiff's family physician found that although plaintiff spoke about back pain that there were no objective findings with her back pain and that she had good strength of her lower legs.

"It is further found that the testimony of Dr. Anthony Alexander Smith, M.D. is predicated upon a history that immediately following the sprained ankle she started having back problems at multiple levels including the neck with pain into the arms, pain between the shoulder blades and pain in the low back with extension of the left hip and leg, and that plaintiff seemed to have a good work record prior to the injury.

"It is further found that Dr. Smith was of the impression that plaintiff was told not to stand or walk for a period of 97 days.

"It is further found that Dr. Smith testified on cross-examination that the report of back or neck pain on July 29th after the accident would disturb him.

"It is further found that plaintiff was the first patient to which Dr. Smith had ever assigned an impairment or disability rating.

"It is further found that the stipulated accidental injury resolved itself and that plaintiff's back problems were not exacerbated by the stipulated industrial accident, that plaintiff's back problems were preexisting, and the Board finds that such back problems were not within a reasonable degree of medical certainty connected to the stipulated industrial accident.

"It is further found that plaintiff currently suffers a 20% permanent partial impairment of the body as a whole of which 10% is causally connected to the stipulated industrial accident.

"It is further found that plaintiff failed to demonstrate her lack of educational ability such as would preclude her from performing a job within her physical limitations.

"It is further found that plaintiff has failed to negate the possibility of employment given her present physical limitations.

"It is further found that the single Hearing Member who heard this case observed the plaintiff during her testimony, and that based upon all the evidence in this cause, he was unable to conclude that plaintiff was permanently and totally disabled within the meaning of the law."

These findings of issuable fact embody the specificity necessary to permit informed judicial review. ¹ The statements reflect the Board's assessment of the facts and sub-issues relevant to the causal connection between Rork's preexisting affliction or condition, her work-related injury, and her subsequent medical status. Inasmuch as the findings are adequate to permit review, we turn to the merits of Rork's substantive contentions:

1. Whether the evidence is sufficient to support the conclusion that she sustained only ten percent permanent partial impairment; and

2. Whether the evidence is sufficient to support the conclusion that she did not suffer permanent total disability.

I.

Rork, as claimant, bore the burden of establishing the existence of her claimed permanent partial impairment. Perez v. United States Steel Corp., (1981) Ind., 428 N.E.2d 212. In our review of the Board's disposition of her claim, this Court does not weigh the evidence or judge the credibility of witnesses. Rather, we...