Wanatah Trucking v. Baert, No. 2-882A269

• Docket Nº: No. 2-882A269
• Citation: 448 N.E.2d 48
• Case Date: April 27, 1983
• Court: Court of Appeals of Indiana

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448 N.E.2d 48 WANATAH TRUCKING, Defendant-Appellant
v.
Jerome BAERT (now deceased); Elsie Baert; Janice Baert;
Jerome Baert, Jr. and Jamie Baert, Plaintiffs-Appellees. No. 2-882A269. Court of Appeals of Indiana,
Third District. April 27, 1983.

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Robert M. Edwards, Jr., Jones, Obenchain, Johnson, Ford, Pankow & Lewis, South Bend, for defendant-appellant.

Thomas W. Ward, Knox, for plaintiffs-appellees.

GARRARD, Judge.

Wanatah Trucking (Wanatah) here seeks judicial review of the decision of the full Industrial Board to award 500 weeks of compensation to the dependents of Jerome Baert for his permanent total disability.

Jerome Baert (Baert) was employed by Wanatah and was injured in an accident occurring within the course of his employment on June 11, 1976. Wanatah furnished Baert with necessary medical and hospital

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services and made temporary total disability payments pursuant to a Form 12 agreement as to compensation from June 11, 1976 to March 19, 1980, the date on which Baert was hospitalized for treatment of cancer. Because Baert had been hospitalized for reasons not related to the employment accident, Wanatah terminated his benefits. Baert died of cancer on June 4, 1980.

On February 24, 1981 a Form 14 application for review of award on account of a change of conditions was filed with the Industrial Board of Indiana (Board) on Baert's behalf. A hearing was held before a single member of the Board, ¹ IC 22-3-4-6, to determine the extent of Baert's permanent partial impairment or whether he was permanently and totally disabled. The single Board member entered findings of fact and conclusions of law and awarded Baert 500 weeks compensation ² for permanent total disability. Wanatah then petitioned for review of the award by the full Board, IC 22-3-4-7, which adopted the single member's findings, conclusions and award as its own. Pursuant to IC 22-3-4-8 Wanatah now seeks judicial review of the full Board's decision.

Wanatah raises three issues:

1. Are the findings of fact entered by the single member and adopted by the full Board supported by evidence in the record?

2. Are the findings of fact sufficiently specific to reveal the basis of the Board's decision and to permit intelligent review?

3. Did the Board err as a matter of law in ruling that Baert's widow and minor dependents were entitled to receive the permanent total disability payments which had not yet accrued on the date of his death?

I.

Wanatah contends that the Board's findings that Baert's condition had reached a permanent and quiescent state ³ on or before May 3, 1979; that Baert had a problem related to a ventral hernia which resolved itself; and that Baert was physically unable to perform any task due to pain in his leg are all unsupported by evidence in the record.

At the outset we note that it is not our prerogative to weigh the evidence or to judge the credibility of witnesses. We will examine the record only to determine whether there is any substantial evidence or inferences therefrom to support the Board's findings and conclusions. Perez v. United States Steel Corp. (1981), Ind., 428 N.E.2d 212 (Perez II ). Further, we cannot reverse the findings of the Board unless it conclusively appears that the evidence upon which the Board acted was devoid of probative value or was so proportionately inadequate that the findings could not rest on a rational basis. Noblesville Casting Div. of TRW v. Prince (1982), Ind., 438 N.E.2d 722. Only if the evidence is so inadequate that a reasonable man would be compelled to reach a contrary result will the decision of the Board be overturned. Perez, supra, 428 N.E.2d at 216.

Despite its statements to the contrary, each of Wanatah's arguments regarding the existence of evidence to support the Board's findings asks us to reweigh the evidence, especially the testimony of Baert's two physicians. Whatever inconsistencies there may have been in an individual witness' testimony or whatever conflicts there may have been between two witnesses was

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for the Board to resolve. ⁴ The Board's finding that Baert's condition had reached a permanent and quiescent state by May 3, 1979 is supported by expert testimony to the effect that damage to the veins of the leg, such as that suffered by Baert, is permanent and irreversible and that his condition persisted unchanged and unrelenting from the date of injury.

Wanatah argues that the finding regarding the hernia is not supported by the evidence because that condition required surgery which, even though the hernia was observed prior to May 3, 1979, was not performed until the following November. By this observation Wanatah appears to argue once more that Baert's condition had not reached a permanent and quiescent state. We do not agree with this reasoning. Although Baert's hernia is traceable to the work accident, it is clear that the principal cause of his disability was the pain in his leg caused by the extensive deep thrombophlebitis and post-traumatic dystrophy. The hernia was merely a temporary by-product of the leg injury. Finally, there was ample testimony that the pain Baert suffered rendered him physically incapable of working. ⁵ Baert's primary physician testified that the pain would prevent Baert from standing for any length of time and would be a constant source of irritation even if he were to attempt a sedentary job. Baert's widow also testified that her husband could do little except sit around, that he had to be helped out of his chair and that he fell frequently and had to be picked up from the floor.

The findings are amply supported by evidence in the record.

II.

IC 22-3-4-7 provides that upon review of an award made by fewer than all members, the full Board shall review the evidence, ⁶ make and file an award, and file the findings of fact upon which the award is based. Our Supreme Court has had several occasions in the recent past to...