Zike v. Onkyo Mfg., Inc.
| Decision Date | 18 November 1993 |
| Docket Number | No. 93A02-9306-EX-292,93A02-9306-EX-292 |
| Citation | 622 N.E.2d 1055 |
| Parties | Susan K. ZIKE, Appellant-Plaintiff, v. ONKYO MANUFACTURING, INC., Appellee-Defendant. |
| Court | Indiana Appellate Court |
Stephen W. Voelker, Voelker Law Office, Jeffersonville, for appellant-plaintiff.
Stephen L. Bola, Hill, Fulwider, McDowell, Funk & Matthews, P.C., Indianapolis, for appellee-defendant.
Appellant-plaintiff Susan Zike appeals the decision of the full Worker's Compensation Board of Indiana denying her claim under the Occupational Diseases Act.
The evidence relevant to the appeal discloses that in August 1989, while working at Onkyo, Zike was exposed to soldering fumes. As a result, Zike developed hypersensitized pneumonitis. Her last day of work was August 28, 1989. On November 22, 1989, Zike was discharged after her treating physician opined that she could no longer work near fumes. Zike then received temporary total disability benefits for twenty-one and four-sevenths weeks. The disability benefits she received totalled $2,991.56.
Zike filed her application for an adjustment of her claim on March 21, 1991. Zike claimed that she could not return to her regular job at Onkyo or one of a similar kind or character. Accordingly, she requested continuing temporary total disability.
On August 13, 1992, after a hearing before a single member of the Worker's Compensation Board, Zike's claim was denied. The single member determined, in part:
"It is further found that from all reasonable medical evidence the plaintiff suffers from hypersensitivity to exposures at Onkyo such as soldering fumes and from glue and chemicals.
This condition renders her incapacitated to a point she can no longer engage in her full-time employment at Onkyo; however, when the plaintiff removes herself from the atmospheric condition at Onkyo, the condition after approximately two weeks subsides and the plaintiff is no longer incapacitated.
It is further found that this condition is specifically connected to Onkyo and is not one that renders her incapacitated from other types of employment, and as such, the plaintiff is not entitled to a continuation of temporary total disability benefits since her condition is not permanent nor ongoing so long as she does not work within a certain area at Onkyo; thus the plaintiff is not entitled to further disability benefits."
Pursuant to Zike's request, the matter was heard by the full Board. On May 21, 1993, the Board adopted the decision of the single member denying Zike's claim. This appeal ensued. Other facts appear below as necessary to the analysis.
On appeal, Zike alleges that the Board erred in denying her claim and treating the claim as one for worker's compensation benefits, rather than one for benefits under the Occupational Diseases Act. Also, Zike contends that 1991 amendments to IND. CODE Sec. 22-3-7-16(b) should be applied to her case.
As acknowledged by Zike and Onkyo, the Worker's Compensation Board, as trier of fact, is charged with making findings which both reveal its analysis of the evidence and are sufficiently specific to permit intelligent review of its decision. K-Mart Corp. v. Morrison (1993), Ind.App., 609 N.E.2d 17, 27. A court reviewing the Board's decision will neither weigh the evidence nor assess the credibility of witnesses and will consider only the evidence most favorable to the award, together with all reasonable inferences deducible from the proven facts. Id. A two-tier standard of review is required to determine the existence of competent evidence of probative value to support the Board's findings and whether the findings are sufficient to support the decision. Id.
However in the present case, Zike contends that the Board's decision rests upon an interpretation of Worker's Compensation law rather than the Occupational Diseases Act. "Disability" and "disablement" are defined in the Occupational Diseases Act. IND. CODE Sec. 22-3-7-9(e) (1988 Ed.) provides:
"As used in this chapter, 'disablement' means the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he claims compensation or equal wages in other suitable employment, and 'disability' means the state of being so incapacitated."
The standards for assessing "disability" and "disablement" are not identical under Worker's Compensation law and the Occupational Diseases Act. Spaulding v. International Bakers Serv. (1990), Ind., 550 N.E.2d 307, 308-310. In Spaulding the court determined:
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Hurd v. Monsanto Co.
...Thus, if an employee's capacity to earn wages is not affected, then there simply is no disablement. Zike v. Onkyo Manufacturing, Inc., 622 N.E.2d 1055, 1058 (Ind.App.1993) (court remands claim to Worker's Compensation Board for determination on whether claimant "could earn equal wages in ot......
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Niegos v. Arcelor Mittal Burns Harbor LLC
...and will consider only the evidence most favorable to the award, together with all reasonable inferences. Zike v. Onkyo Mfg., Inc., 622 N.E.2d 1055, 1057 (Ind. Ct. App. 1993). Therefore, to prevail, [an appellant] must demonstrate that there was no probative evidence from which the Board mi......
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Niegos v. Arcelormittal Burns Harbor Llc
...and will consider only the evidence most favorable to the award, together with all reasonable inferences. Zike v. Onkyo Mfg., Inc., 622 N.E.2d 1055, 1057 (Ind.Ct.App.1993). Therefore, to prevail, [an appellant] must demonstrate that there was no probative evidence from which the Board might......