Whispering Pines Home for Senior Citizens v. Nicalek, 2--1173A252

• Citation: 48 Ind.Dec. 568, 333 N.E.2d 324
• Case Date: September 04, 1975
• Court: Court of Appeals of Indiana

Page 324

333 N.E.2d 324

WHISPERING PINES HOME FOR SENIOR CITIZENS, Appellant, v. Thelma Joan NICALEK, Appellee.

No. 2--1173A252.

Court of Appeals of Indiana, Second District.

Sept. 4, 1975.

Larry G. Evans and Karen L. Hughes, Chester, Clifford, Hoeppner & Houran, Valparaiso, Rudy Lozano, Spangler, Jennings, Spangler & Dougherty, Gary, for appellant.

John A. Hovanec, Gary, for appellee.

WHITE, Judge.

This is the second appeal of an award of workmen's compensation benefits to the appellee. On the first appeal we reversed and remanded because the Industrial Board's Findings of fact lacked sufficient specificity to enable us to make an intelligent review. Whispering Pines Home for Senior Citizens v. Nicalek (1973), Ind.App., 300 N.E.2d 669, 38 Ind.Dec. 394.

On remand the Board reentered, under the caption 'Corrected Award', its previous recitals, findings and award and added to its 'findings' these three paragraphs:

'That at the hearing, it was stipulated and agreed by the parties that Exhibits 1 and 2 be admitted and made a part of the record.

'That the date of the alleged accident is November 9, 1968. That the claimant was compensated at the rate of $1.35 per hour. That at the time of the alleged accident, the claimant was an employee of Whispering Pines Home for Senior Citizens. The evidence considered by the Board in this case is that the plaintiff testified:

'That while working as a nurses' aid, she helped two (2) other female employees lift an elderly man from the floor. The plaintiff alleges that as a result of the exertion she sustained injuries to her lower back. However, at the time of the exertion, the plaintiff testified that she felt no pain and continued working until the end of her shift, seven o'clock the following morning, November 10, 1968. Upon arriving home, she testified that she went to bed for approximately three (3) hours and awakened around twelve o'clock noon. At that time, she first felt pain in her lower back. The following two (2) days were her regular days off. She returned to work on November 12, 1968, and at that time first reported the incident to the supervising nurse. She worked the remainder of her four days, the last day being the morning of November 16, 1968. She then went to see Dr. Kilmer, her family physician, without the specific authorization of her employer. Dr. Kilmer referred the plaintiff to Dr. Leon Armalavage. He first examined the patient on December 31, 1968. As a result of his examination Dr. Armalavage concluded that she had a lumbosacral sprain. The plaintiff returned to work on February 1, 1969, and continued working until March, 1970, a thirteen month period. On August 31, 1970, she as examined by Dr. Edward A. Mladick. He found that, 'some of her back complaints are on a postural basis and that some are due to the degenerative disease at the lumbosacral level which appears to have existed prior to her injury.' He further stated that 'the injury in November, 1968, did not introduce a permanent impairment or permanently aggravate a pre-existing condition.' On December 21, 1970, she was admitted into Porter Memorial Hospital by Dr. Kilmer, he again requested that Dr. Armalavage see her. On December 22, 1970, Dr. Armalavage conducted an exploratory operation on her back. A narrow degenerated disk with some bulge to it was found at L4--5 level on the right side. The disk at L5--S1 was also explored and found to be normal in appearance and was not disturbed. The plaintiff was then discharged from the hospital on January 2, 1971. On February 15, 1971, Dr. Armalavage last viewed the patient and stated at that time '. . . it would be dangerous for her to go back to lifting patients this soon after her surgery.' He did not relate her condition to the alleged accident of November 9, 1968.'

The first above quoted paragraph tells us only that the parties agreed that two exhibits should be made a part of the record. It does not tell us whether the Board found any fact or facts to be true as a result of this stipulation to admit exhibits, whatever they were. The brief suggests that these exhibits were the medical reports of two doctors (Armalavage and Miadick) whose findings and conclusions are mentioned in the third paragraph, but neither this first paragraph of 'findings' or the third paragraph tell us whether the board found anything stated in either or both of those reports to be a fact.

To the extent that the first three sentences of the second paragraph find facts, they find ultimate facts which were never in dispute. (Whether plaintiff sustained an accident is in dispute but these sentences find no accident; merely the date of an alleged accident.)

The last sentence of the second paragraph and the third paragraph are findings of but one fact, that plaintiff testified to everything that is stated in paragraph three. However, the briefs and the record make it clear that this is not so; that, instead, the statements in paragraph three attributed to the doctors are not hearsay testimony by the plaintiff but are direct and indirect quotations from the doctors' reports and/or their testimony. Therefore what we have before us in paragraph three is nothing more than a summary of the evidence, without any statement at all by the Board that anything testified to by any of the four witnesses is a fact. Nor can we reasonably assume that the Board is trying to tell us that it found the facts to be what all the witnesses testified they were. There are too many conflicts for that to be so.

All that we can reasonably understand is that the Board is telling us (by implication) that it does not know how to make a specific finding of facts and therefore it...