Thrasher v. Marhoefer Packing Co.
| Decision Date | 10 January 1972 |
| Docket Number | No. 871A147,871A147 |
| Citation | 150 Ind.App. 662,277 N.E.2d 174 |
| Parties | Donald THRASHER, Appellant-Plaintiff, v. MARHOEFER PACKING CO., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Archie Lapin, Lapin & Koor, Muncie, for appellant-plaintiff.
John T. Lorenz, Howard J. DeTrude, Jr., Frank I. Magers, Indianapolis, for appellee-defendant; Kightlinger, Young, Gray & Hudson, Indianapolis, of counsel.
Claimant Thrasher is appealing from an award of the full Industrial Board, the pertinent part of which reads:
'That on May 17, 1967, plaintiff was in the employ of the defendant herein but did not suffer an accidental injury arising out of and in the course of his employment by the defendant.
That on November 5, 1968, the plaintiff was in the employ of the defendant herein at an average weekly wage in excess of the maximum of $85; that on said date the plaintiff sustained an accident and injury arising out of and in the course of his employment by the defendant, of which the defendant had knowledge but has not paid all of the statutory medical expenses resulting from said injury.
It is further found that as a result of said injury plaintiff was temporarily totally disabled for a period beginning March 19, 1969, to August 11, 1969.
'It is further found that plaintiff's injury has reached a permanent and quiescent state and that he has sustained no permanent partial impairment as a result of said accident on November 5, 1968.
The full Industrial Board of Indiana now finds for the plaintiff and against the defendant on plaintiff's Form 9 application filed herein on February 27, 1969.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the full Industrial Board of Indiana that the plaintiff shall have and recover from the defendant compensation at the rate of $51 per week, beginning March 19, 1969, to August 11, 1969, for his temporary total disability as a result of his accidental injury of November 5, 1968.'
The decision reversed an earlier award of a single member of the Board which had found Thrasher suffered a permanent partial impairment of ten percent of the man as a whole. The earlier award also found that Thrasher sustained an injury arising out of and in the course of his employment on the 17th of May, 1967.
Thrasher had consulted a neuro-surgeon regarding the pain arising from the May, 1967, incident. As a result, a disc was removed in November of 1967. Thrasher complained of further discomfort when, on the 5th of November, 1968, he 'rehurt' his prior injury. Further consultation with the same doctor resulted in further surgery at the same location of the back occurring in April, 1969.
A brief summary of the neuro-surgeon's impairment rating of Thrasher disclosed considerable scar tissue at the site of the first surgery with the neighboring two lumbar discs being normal. The report concluded:
'(1). Lumbar disc protrusion, post-operative status: 5% impairment of the whole man.
(2). Restricted lumbar spinal motility: 17% impairment of the spine and 10% impairment of the whole man.
Combining and rounding the above values allows me to estimate Mr. Thrasher's permanent partial impairment at 15% of the whole man.'
Another doctor found Thrasher to be feigning illness, either subconsciously or consciously. This examination was prior to the second surgery.
Yet another physician testified that a probability of 10% to 15% impairment could exist as a result of disc surgery. This physician had not examined Thrasher for an impairment rating.
Thrasher's position is the award of the full Industrial Board is contrary to law in that it is not supported by sufficient evidence. This proposition is further divided into two parts:
1. Is there any substantial evidence to support the finding by the Industrial Board that there was no permanent...
To continue reading
Request your trial