Smith v. Graver Tank & Mfg. Co., 2--673A149A

• Decision Date: 06 November 1973
• Docket Number: No. 2--673A149A,2--673A149A
• Citation: 158 Ind.App. 431,302 N.E.2d 852
• Parties: E. Gerald SMITH, Plaintiff-Appellant, v. GRAVER TANK & MANUFACTURING CO., a Division of Envirogenics, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 852

302 N.E.2d 852

158 Ind.App. 431

E. Gerald SMITH, Plaintiff-Appellant, v. GRAVER TANK & MANUFACTURING CO., a Division of Envirogenics Defendant-Appellee.

No. 2--673A149A.

Court of Appeals of Indiana, Third District.

Nov. 6, 1973.

Rehearing Denied Dec. 12, 1973.

Samuel J. Furlin, Samuel J. Bernardi, Jr., Spangler, Jennings, Spangler & Dougherty, Gary, for plaintiff-appellant.

Angelo A. Buoscio, Strom & Whitted, Merrillville, for defendant-appellee.

HOFFMAN, Chief Judge.

E. Gerald Smith (Smith) requests judicial review of a decision of the Full Industrial Board of Indiana (Board) which awarded compensation for an injury arising out of and in the course of his employment with Graver Tank & Manufacturing Company (Graver Tank).

The pertinent findings of the Board are as follows:

'It is further found that on the 28th day of May, 1971, plaintiff while in the employ of the defendant at an average weekly wage in excess of $95.00, sustained personal injuries by reason of an accident arising out of and in the course of his employment by said defendant, of which said accidental injury defendant had knowledge and did furnish the statutory medical attention; that the medical treatment received by plaintiff from Dr. Jose F. Serrano, and at the V.A., Hines Hospital at Hines, Illinois were not authorized by the defendant and were at the plaintiff's own expense; that plaintiff's said accidental injuries consisted of nerve and muscle damage to the right leg, groin, quadricep, knee, hip, and injury to the back;

'That pursuant to agreement approved by the Industrial Board July 12, 1971, defendant paid plaintiff twelve (12) weeks temporary total disability benefits, at the rate of $57.00 per week, beginning May 29, 1971, to August 20, 1971, on which said last mentioned date plaintiff's temporary total disability on account of said accidental injury terminated.

'It is further found that all injuries from plaintiff's accident of May 28, 1971, have now reached a permanent and quiescent state and plaintiff now has a five per cent (5%) permanent partial impairment of the right leg above the knee as a result thereof.

'That prior to the filing of plaintiff's application a good faith effort was made by said parties to adjust said claim, which effort resulted in a disagreement between the parties.

'It is further found that on the 17th day of February, 1972, plaintiff filed his Petition for Attorneys Fees Because of Employer's Bad Faith and/or Lack of Diligence, which said Petition is in the following words and figures, to-wit:

(H.I.)

and which said Petition is denied.

'The full Industrial Board of Indiana now finds for the plaintiff and against the defendant on plaintiff's Form 9 application for the adjustment of claim for compensation, filed on the 24th day of September, 1971.'

The Board then made an award of five per cent permanent partial impairment to the right leg above the knee on account of such accidental injury and attorney's fees.

The assignment of errors that the award is contrary to law raises two issues:

1. Did the Board fail to make specific findings of fact regarding:

a) Smith's temporary total disability;

b) Smith's permanent partial impairment;

c) Graver Tank's bad faith negotiation which would require it to pay Smith's attorney's fees?

2. Are the findings of the Board supported by sufficient evidence of probative value to sustain the decision of the Board?

ISSUE ONE.

Smith contends that the Board failed to make specific findings of fact as to the nature of his work at the time of his injury; whether he was able to resume work of the same kind and character as that in which he was engaged at the time of the injury; the length of time Smith was absent from work as a result of the injury; whether alternative employment was tendered by Graver Tank; and whether treatment by Smith's private physician which was not provided by Graver Tank was necessary and thus compensable. The record shows that the parties stipulated that there were only three issues to be presented for determination. The above issues now raised were not presented to the Hearing Member nor the Full Board. The Board was under a duty to make specific findings of fact only on those elements in issue as set forth by stipulation of the parties. In Transport Motor Express, Inc. v. Smith (1972), Ind.App., 289 N.E.2d 737, at 744, 34 Ind.Dec. 42, this court stated the specific findings needed to enable an intelligent review of the Board's decision:

'(A)re those which are relevant to the contested issues, the disputed issues, which is to say, the specific facts which are basic to the ultimate facts upon which the parties have been unable to agree.

'As to the other elements of the claimant's burden of proof, the uncontested and undisputed elements, on which the Board must make a finding, it is relatively unimportant whether the facts are found specifically * * *.' (Footnote omitted.)

The pertinent part of the record of the proceedings conducted before the single Hearing Member is as follows:

'MEMBER: Now let me see if I understand this. There is no question of an accident, no question about the employment, that the accident occurred in the scope of the employment. Is there any question it arose out of and in the course of his employment?

'MR. BUOSCIO: (Attorney for Graver Tank) No, no such issue as to that.

'MEMBER: No issue on notice and no issue on wages. What is the issue, permanent partial impairment and temporary total disability?

'MR. BERNARDI: (Attorney for Smith) That question, your honor, and we also have a motion for attorney fees, a request for attorney fees.

'MEMBER: The only thing, is there a question with temporary total disability or have your resolved that question?

'MR. BERNARDI: No, we haven't.

'MR. BUOSCIO: Apparently not then by what counsel says.

'MEMBER: So there is a question as to temporary total disability and there is a question as to permanent partial impairment right?

'MR. BERNARDI: Yes, sir.

'MEMBER: And there is a question you say as to attorney fees?

'MR. BERNARDI: There was a motion on attorney fees for failure to negotiate good faith negotiation, a motion was made.

'MEMBER: You're asking for additional fee?

'MR. BERNARDI: Over and above the normal ruling.

'MEMBER: Because of failure to make good faith, huh?

'MR. BERNARDI: Good faith negotiation.

'MR. BUOSCIO: There's a verified petition as to that response.

'MEMBER: Okay, are we ready to proceed?

'MR. BUOSCIO: Affirmative nod.

'MR. BERNARDI: Yes, we are.

'MEMBER: You may call your first witness.'

The stipulation set forth above clearly shows that only three issues were before the Hearing Member. The same three issues were ultimately decided by the Full Industrial Board. The issue raised by this appeal, therefore, is whether the Board made specific findings of fact on the above stated stipulated issues to support the award and whether such findings were sustained by sufficient evidence of probative value.

With respect to the issue of whether Smith sustained any temporary total disability, and, if so, when such temporary total disability terminated, the Board specifically found:

'That pursuant to agreement approved by the Industrial Board July 12, 1971, defendant paid plaintiff twelve (12) weeks temporary total disability benefits, at the rate of $57.00 per week, beginning May 29, 1971, to August 20, 1971, on which said last mentioned date plaintiff's temporary total disability on account of said accidental injury terminated.'

With respect to the second issue concerning permanent partial impairment, the Board found:

'It is further found that all injuries from plaintiff's accident of May 28, 1971, have now reached a permanent and quiescent state and plaintiff now has a five per cent (5%) permanent partial impairment of the right leg above the knee as a result thereof.'

With respect to the third issue involving Graver Tank's bad faith negotiation, the Board found:

'That prior to the filing of plaintiff's application a good faith effort was made by said parties to adjust said claim, which effort resulted in a disagreement between the parties.

'It is further found that on the 17th day of February, 1972, plaintiff filed his Petition for Attorney Fees Because of Employer's Bad Faith and/or Lack of Diligence, which said Petition is in the following words and figures, to-wit: (H.I.) and which said Petition is denied.'

These findings are sufficiently specific to enable this court to make an intelligent review of the Board's award. This court has stated that the...