Starks v. National Serv-All, Inc.

• Decision Date: 23 May 1994
• Docket Number: No. 93A02-9208-EX-00370,SERV-AL,INC,93A02-9208-EX-00370
• Citation: 634 N.E.2d 88
• Parties: Clancy STARKS, Appellant-Plaintiff, v. NATIONAL, Appellee-Defendant, Third-Party Plaintiff, and Aetna Casualty and Surety Co., Appellee-Third-Party Defendant.
• Court: Indiana Appellate Court

Page 88

634 N.E.2d 88

Clancy STARKS, Appellant-Plaintiff, v. NATIONAL SERV-ALL, INC., Appellee-Defendant, Third-Party Plaintiff and Aetna Casualty and Surety Co., Appellee-Third-Party Defendant.

No. 93A02-9208-EX-00370.

Court of Appeals of Indiana Second District.

May 23, 1994.

Edward N. Smith, Fort Wayne, for appellant.

M. Bruce Scott, DeVoss, Scott, Johnson & Baker, Decatur, for National Serv-All, Inc.

Stephen L. Bola, Hill Fulwider McDowell Funk & Matthews, Indianapolis, for Aetna Cas. and Sur. Co.

SULLIVAN, Judge.

Clancy Starks appeals a negative award of the Worker's Compensation Board of Indiana upon his claim for worker's compensation disability benefits. Upon appeal, Starks presents three issues for our review. However, we conclude that one of those issues is dispositive of his appeal. That issue, restated, is whether the Board's conclusion that Starks did not sustain an injury on June 2, 1989 while on the job is supported by sufficient evidence.

We affirm.

The Board's findings of fact reveal that Starks was employed by National Serv-All, Inc. as a sanitation truck driver. On Friday, June 2, 1989, Starks was driving his route, accompanied by his son, Ray Suel, and by Roosevelt Childs. Starks testified that there was a bag of trash at one particular stop that was too heavy for Childs to lift. Starks claimed that he (Starks) picked up the bag and threw it into the truck, ¹ an assertion which neither Childs nor Suel could positively confirm. Childs testified that, following the incident, Starks continued his route for almost two hours until it was completed.

On the following Monday, June 5, Starks telephoned Serv-All complaining that he was "hurting all over" and requesting that he be allowed to stay home. However, at the suggestion of his foreman, Starks agreed to supervise a shift that day. On June 6, Starks was unable to move, his back was swollen, and he complained of numbness in his left leg, left arm, and left hand. Starks was transported to a hospital. The parties stipulated that on June 17, 1989, Starks "underwent a bilateral lumbar laminectomy with removal of the lamina of L5 and part of the lamina of S1 with bilateral disc excision at the level of L5-S1 and bilateral nerve root decompression." Record at 103. The parties also stipulated that, as of October 5, 1989, Starks had suffered a total and permanent disability.

On August 29, 1989, Starks filed an application for worker's compensation benefits. At a hearing before a single hearing member, the parties stipulated that the only issues before the hearing member were 1) whether Starks sustained an accidental injury on June 2, 1989, arising out of and in the course of his employment; 2) whether, as a result of the same injury, Starks suffered permanent total disability or partial permanent impairment; and 3) whether he was entitled to temporary total disability benefits.

Following the hearing, the following conclusions were entered:

"1. Plaintiff [Starks] has failed to sustain his burden of proof that his current disability was caused by an accident arising out of and in the course of his employment with Defendant on June 2, 1989.

2. Plaintiff was not injured by accident arising out of and in the course of his employment with Defendant of June 2, 1989." Record at 107-08.

After a June 22, 1992 hearing, the full Worker's Compensation Board adopted the determinations made by the single hearing member, and affirmed the denial of benefits.

Findings

We note at the outset that the parties have addressed the adequacy of the hearing member's findings and conclusions in their appellate briefs. This issue is neither specifically introduced nor squarely presented by appellant, but rather is incorporated into his sufficiency of evidence argument. Nevertheless, we address the threshold issue of whether the findings provide an adequate basis upon which to review the award.

The Board's findings must be stated with sufficient specificity upon contested issues so as to allow intelligent review. Indiana Bell Telephone Company, Inc. v. Owens (1980) 4th Dist.Ind.App., 399 N.E.2d 443, 445. In the instant case, the findings consist almost entirely of a summary of the testimony presented upon the issue of causation. Following is an example of the findings:

"9. Debra Kraick, who's employed with Defendant as a dispatcher and also handles Worker's Compensation matters, testified that she had no knowledge Plaintiff had an on-the-job injury until July 12, 1989. She denied receiving any radio transmissions from Plaintiff, June 2, 1989; nor did she recall any telephone conversations with Plaintiff June 5 or June 6, 1989, concerning any injury on the job.

* * * * * *

11. Huey Pearson, M.D., testified by deposition that he had been Plaintiff's family physician since early 1960, and that he was the physician who originally treated Plaintiff in June, 1989 for his back injury. He saw Plaintiff in the emergency room at St. Jo Hospital June 6, 1989, and was advised by Plaintiff at that time that he thought he had strained his back June 2, 1989, while lifting at work. A lumbar CT scan was done with demonstrated disc herniation at L3 and 4, and at L5-S1.

* * * * * *

14. Dr. Donesa's neurological consultation report indicates that Plaintiff's chief complaint at the time he was originally seen by Dr. Donesa, to be 'back pain and left hip pain, left leg pain'. At that time, Dr. Donesa's impressions of Plaintiff were as follows: 'mild diabetes, hyperurecemia, herniated lumbar disks with degenerative disk disease at the level of L3-L4, L4-L5, L5-S1, with back pain and left leg pain.' Dr. Donesa did not recall Plaintiff indicating that he had injured himself by accident at work.

* * * * * *

17. The medical evidence suggests that Plaintiff's weight is one of the contributing factors to injuries or types of degenerative disease, and that diabetes may contribute to degenerative disc disease. Degenerative disc disease can cause pain." Record at 106-07.

Starks's assertion regarding the adequacy of the findings is not entirely without merit. In Perez v. United States Steel Corp. (1981) Ind., 426 N.E.2d 29, appeal after remand (1981) 428 N.E.2d 212, our Supreme Court stated, "statements to the effect that 'the evidence revealed such and such ...,' that 'Mr. Jones testified so and so ...,' or that 'the Industrial Board finds Dr. Smith testified so and so ...,' are not findings of basic fact in the spirit of the requirement." Id. at 33. The message appears, however, to have fallen upon deaf ears, because we have since repeated that message many times. See Hehr v. Review Bd. (1989) 2d Dist.Ind.App., 534 N.E.2d 1122, 1127. Obviously, the Board's findings in the instant case are of the sort referred to above in Perez. Upon first examination, then, the findings appear not to measure up to the standard enunciated in Perez.

In some instances, the findings must be tailored to the issues presented and the conclusions reached. This is especially so when a negative award has been rendered.

The standard of review applicable specifically to negative decisions by the Worker's Compensation Board is:

"A claimant bears the burden of proof for his claim. A negative award may be sustained by an absence of evidence favorable to the claimant's contentions or by the presence of evidence adverse to the claimant's contentions." Duncan v. George Moser Leather Co. (1980) 2d Dist.Ind.App., 408 N.E.2d 1332, 1339, quoting Dennison v. Martin, Inc. (1979) 1st Dist. 182 Ind.App. 491, 395 N.E.2d 826, 827 (citations omitted).

We evaluate findings in view of the task which they must aid appellate courts in performing. Although the above does not directly address the subject of what courts examine when reviewing the adequacy of findings, it does succinctly describe the task which those findings must aid this court in performing. When reviewing findings, we are mindful that findings must be tailored to the particular award, and that not all findings will necessarily be of the same character. For example, the findings supporting a negative award based upon lack of causation may differ from those necessary to support a positive award.

If, for example, the hearing member had found in favor of Starks upon the issue of causation, the findings in support of that...