White v. Woolery Stone Co., Inc.

• Decision Date: 01 August 1979
• Docket Number: No. 2-1278-A-436,2-1278-A-436
• Parties: George WHITE, Appellant, v. WOOLERY STONE COMPANY, INC., Appellee.
• Court: Indiana Appellate Court

Page 137

396 N.E.2d 137

181 Ind.App. 532

George WHITE, Appellant, v. WOOLERY STONE COMPANY, INC., Appellee.

No. 2-1278-A-436.

Court of Appeals of Indiana, Second District.

Aug. 1, 1979.

K. Edwin Applegate, Applegate & Pratt, Bloomington, for appellant.

Richard W. Guthrie, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellee.

LYBROOK, Judge.

MEMORANDUM DECISION

George White injured his knee while working for the Woolery Stone Company. Due to the injury, White underwent surgery to remove the cartilage from his left knee. This operation resulted in many complications and a lengthy convalescent period; in fact, White never fully recovered from the operation or the complications that arose therefrom.

White brought a claim before a single member of the Industrial Board of Indiana. The single member found White to suffer a 50% Permanent partial impairment to his left lower extremity, and ordered Woolery Stone Co. to pay White $60 per week for 1121/2 weeks. White appealed this decision to the Full Industrial Board, alleging that the single member award was contrary to law and was not sustained by sufficient evidence. White sought a declaration that his impairment resulted in permanent total disability. The Full Industrial Board disagreed, however, and affirmed the single member award.

As a result of the decision of the Full Industrial Board, White filed a timely praecipe and properly included his assignment of errors in the record of proceedings presented to this court. This appeal results.

In his assignment of errors, White argues that the decision of the Full Industrial Board is contrary to law and unsupported by the evidence.

We affirm the decision of the Full Industrial Board.

Disability and impairment are words of art, as used in the Workmen's Compensation Act. Ind. Code 22-3-3. "Disability" means and refers to an inability to work, whereas "impairment" means and refers to a loss of physical function. See Perez v. United States Steel Corp., (1977) Ind.App., 359 N.E.2d 925, 927; Kenwood Erec. Co. v. Cowsert, (1953), 124 Ind.App. 165, 115 N.E.2d 507. A further distinction is necessary to properly consider White's claim. This distinction concerns the understanding of three terms necessary to the disposition of the case at bar: temporary total disability, permanent total disability, and permanent partial impairment.

Temporary total disability payments are intended to compensate an employee for the treatment period following a work-related injury, and during this treatment period it is relevant whether the injured workman has the ability to return to work of the same kind or character. Covarubias v. Decatur Casting; Division of Hamilton Allied Corp., (1976) Ind.App., 358 N.E.2d 174. If he does not have the ability to return to work of the same kind or character during the treatment period, he is temporarily totally disabled. Covarubias, supra. This is to be compared with permanent total disability and permanent partial impairment which are determined, alternatively, when the work-related injury reaches a permanent and quiescent state, the treatment period ends, and the permanent injury can be assessed for compensation purposes. Covarubias, supra; Perez, supra.

Dean Small, in Small, Workmen's Compensation Law of Indiana, § 9.4, p. 244 states:

"A total disability to be permanent must be one which so destroys or shatters a workman's wage earning capacities as to leave him unable to resume reasonable types of employment for the remainder of his life. Since this form of disability is treated in the same section with other harms comprising threats to wage-earning power such as impairments and lost uses, total permanent disability must be taken to require a greater incapacity than that...